Finance
Instrument: Power of Attorney (POA)
What is it for?
The “power of attorney” (POA) grants an individual (“principal”) the authority to grant another person (“agent”) to make decisions concerning the principal’s property on the principal’s behalf.
What does it do?
The POA empowers the agent to make decisions and act with respect to the principal’s property whether or not the principal is able to act for themself. The agent is granted authority over a broad range of matters, unless the POA expressly limits the agent’s authority. Colo. Rev. Stat. Ann. § 15-14-702. The POA cannot include the power to make health care decisions. Colo. Rev. Stat. Ann. § 15-14-703.
Unless a POA expressly states otherwise, a POA is considered to be “durable,” which means the agent’s authority continues during a period when the principal lacks capacity. Colo. Rev. Stat. Ann. § 15-14-704.
In making decisions for the principal, the agent must act in good faith, only within the scope of the authority granted in the POA, and in accordance with the principal’s known expectations and in the principal’s best interest. Colo. Rev. Stat. Ann. § 15-14-714.
Third parties must generally accept decisions made by the agent as if the principal had made them. They may, however, request the agent for a certification of the POA’s validity. Colo. Rev. Stat. Ann. § 15-14-720.
How does one make it?
The POA must be in writing, signed by the principal or in the principal’s conscious presence by another, and notarized. Colo. Rev. Stat. Ann. § 15-14-705.
When does it come into effect?
The agent’s authority becomes effective immediately when the POA is executed unless the POA states that it becomes effective at a future date or upon the occurrence of future event, such as upon the principal’s “incapacity.” Colo. Rev. Stat. Ann. § 15-14-709(1).
If the POA becomes effective upon a future date, occurrence, or event, a principal may designate one or more persons to determine that the future date, occurrence, or event has occurred in writing. Colo. Rev. Stat. Ann. § 15-14-709(2). Unless the POA states otherwise, the principal’s incapacity will be determined by a physician or a licensed psychologist. Colo. Rev. Stat. Ann. § 15-14-709(3)(a).
For the purpose of this determination, “incapacity” means the principal is unable to manage their property or business affairs for two main reasons due to an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Colo. Rev. Stat. Ann. § 15-14-702(5)(a).
How long does it last?
A durable POA generally lasts until the principal or agent dies; the principal revokes the POA; the POA provides that it terminates upon some future date or event; the purpose of the POA is accomplished; or the agent’s authority is revoked. Colo. Rev. Stat. Ann. § 15-14-710.
How does one end it?
A principal may revoke a POA by either: substantial compliance with a method provided in the POA document for revoking the POA; or by any method manifesting clear and convincing evidence of the principal’s intent to revoke the POA. Colo. Rev. Stat. Ann. § 15-14-710.
What does an example look like?
A statutory form is provided at Colo. Rev. Stat. Ann. § 15-14-741. An optional agent’s certification form is provided at Colo. Rev. Stat. Ann. § 15-14-742. The Colorado Secretary of State also provides a sample form here.
What else should one know?
Colorado’s POA is based on the Uniform Power of Attorney Act.
Updated August 2022
Education
No information available at this time.
Health
Instrument: Medical Durable Power of Attorney (MDPOA)
What is it for?
A “medical durable power of attorney” (MDPOA) allows an adult (the “principal”) to grant another person (the “agent”) the power to consent or refuse medical decisions on behalf of the principal in the event the principal lacks “decisional capacity.”
What does it do?
The MDPOA grants an agent the same power to make medical treatment decisions the principal would have if the principal did not lack “decisional capacity.” Colo. Rev. Stat. Ann. §§ 15-14-506(3). An agent may make any decisions on behalf of the principal regarding the provision, withholding, or withdrawal of any health-care, medical procedure, including artificially provided nourishment and hydration, surgery, cardiopulmonary resuscitation, or service to maintain, diagnose, treat, or provide for a patient’s physical or mental health or personal care. Colo. Rev. Stat. Ann. § 15-14-505(7).
In exercising this power, the agent must follow the terms, directives, conditions, or limitations stated in the MDPOA document, and must act in accordance with the principal’s wishes that are known to the agent. If the principal’s wishes are not otherwise known to the agent, then the agent must act in accordance with the agent’s determination of the principal’s best interests. The agent is also responsible for conferring with the principal’s attending physician concerning the principal’s medical condition before making medical treatment decisions for the principal. Colo. Rev. Stat. Ann. § 15-14-506(2).
Each health-care provider and health-care facility generally must comply with the decision of an agent acting pursuant to an MDPOA. Colo. Rev. Stat. Ann. § 15-14-508(2).
The MDPOA is one kind of “advance medical directive.” The MDPOA can, but need not, include instructions or directions for the agent about the agent’s health-care wishes. Colo. Rev. Stat. Ann. § 15-14-505(2).
How does one make it?
The MDPOA must be in writing, but there are no other legal requirements: witnesses and notarization are optional. As a practical matter, the MDPOA should identify both the principal and the agent.
When does it come into effect?
An MDPOA comes into effect once the principal is determined to lack “decisional capacity,” which means the ability to provide informed consent to or refusal of medical treatment or the ability to make an informed health-care benefit decision. Colo. Rev. Stat. Ann. § 15-14-505(4). Presumably, this determination may be made by the principal’s attending physician.
How long does it last?
Presumably, the agent’s authority lasts during any periods when the principal lacks decisional capacity, unless the principal revokes the MDPOA.
How does one end it?
Presumably, the principal may revoke an MDPOA in writing or by destroying it.
What does an example look like?
Colorado does not provide a statutory form, but the Colorado Department of Public Health & Environment does provide a sample form.
What else should one know?
Neither having nor not having an MDPOA is allowed to affect, impair, or modify any contract of life or health insurance or annuity. Colo. Rev. Stat. Ann. § 15-14-508(4).
Updated August 2022
General
Instrument: Supported Decision-Making Agreement (SDMA)
What is it for?
A “supported decision-making agreement” (SDMA) allows an adult with a disability to enter into an agreement with one or more adult supporters to assist the adult with making decisions which impact the adult with a disability.
What does it do?
Under an SDMA, an adult with a disability may be assisted by a “member of the supportive community” to make any kind of decision in a variety of ways, at the adult with a disability’s request. These forms of assistance include:
- helping the adult with a disability understand issues and choices;
answering questions; - providing explanations in a language the adult with a disability understands;
- communicating the adult with a disability’s decision to others, if necessary and if specifically requested by the adult with a disability; and
- facilitating the exercise of decisions regarding the adult with a disability’s day-to-day health, safety, welfare, or financial affairs. Colo. Rev. Stat. Ann. § 15-14-802.
A “member of the supportive community” is a person whom the adult with a disability has identified, whom the adult trusts to engage in the supported decision-making process, and who understands the adult’s desires and personal values. Colo. Rev. Stat. Ann. § 15-14-802(4). Any member of the supportive community must agree to:
- provide information as requested by the adult with a disability;
- respect that the final and ultimate decision is the adult with the disability’s and not the member of the supportive community’s;
- not coerce or manipulate the adult with the disability into making any decision; and
- provide the most up-to-date and relevant information to the adult with the disability based on all the available and known information the member of the supportive community has. Colo. Rev. Stat. Ann. § 15-14-805(1)(d).
A member of the supportive community cannot make decisions on behalf of the adult with a disability. Colo. Rev. Stat. Ann. § 15-14-803(1)(a).
How does one make it?
An SDMA must be in writing; state the day, month and year the SDMA was entered into; contain the name of the adult with the disability; contain the name, address, phone number, and email of the member of the supportive community; and lists the decisions that the adult with a disability requests the member of the supportive community to advise the adult about. The SDMA must also describe the terms the member of the supportive community agrees to respect with regard to the adult with a disability. Colo. Rev. Stat. Ann. § 15-14-805(1).
The SDMA must be signed voluntarily by the adult with a disability and each member of the supportive community relevant to the SDMA in the presence of two or more disinterested adult witnesses or a notary public. Colo. Rev. Stat. Ann. § 15-14-805(2).
When does it come into effect?
Presumably, the member of the supportive community’s power and duties come into effect immediately when the SDMA is executed.
How long does it last?
An SDMA is effective until terminated by the adult with a disability or the member of the supportive community, unless the terms of the SDMA agreement provide for a seperate form of termination. Colo. Rev. Stat. Ann. § 15-14-803(3)(a).
How does one end it?
Any party to the SDMA may choose to end it by providing written or verbal notice of the termination to all parties to the SDMA. Colo. Rev. Stat. Ann. § 15-14-803(3)(a).
An SDMA can also end automatically if adult protective services finds that the adult with a disability has been mistreated by the member of the supportive community named in the SDMA or if the member of the supportive community is convicted of a crime against an at risk person, intentionally causes physical harm to another, convicted of a financial crime, or found to have committed theft. Colo. Rev. Stat. Ann. § 15-14-803(b)(I)-(II).
What does an example look like?
Colorado does not provide a statutory form. The Colorado Developmental Disabilities Council provides a sample form here.
What else should one know?
An SDMA cannot be used as evidence of incapacity of the adult with a disability. Colo. Rev. Stat. Ann. § 15-14-803 (4).
Updated August 2022