Instrument: Power of Attorney (POA)

What is it for?
The “power of attorney” (POA) grants an individual (the “principal”) the authority to grant another person (the “agent”) to make decisions concerning the principal’s property on the principal’s behalf.

What does it do?
The POA empowers the agent to be able to make decisions and act with respect to the principal’s property. Unless the POA expressly limits the agent’s authority, the agent is granted authority over a broad range of matters, including managing the principal’s money, receiving government benefits, entering into contracts, and pursuing legal claims. Idaho Code Ann. § 15-12-102.

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. Idaho Code Ann. § 15-12-104.

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. Idaho Code Ann. § 15-12-114.

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 prior to relying on the agent’s authority. Idaho Code Ann. § 15-12-120.

How does one make it?
The POA generally must be in writing, signed by the principal or in the principal’s conscious presence by another individual at the principal’s direction, and notarized. Idaho Code Ann. § 15-12-105.

When does it come into effect?
The agent’s authority becomes effective immediately upon execution unless the POA states that it becomes effective at a future date, or upon the occurrence of a future event, such as the principal’s incapacity. Idaho Code Ann. § 15-12-109(1).

If a power of attorney 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. Absent a designation of who will determine the principal’s incapacity, this determination may be made by a physician or licensed psychologist who has evaluated the principal. Idaho Code Ann. § 15-12-109(2).

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. Idaho Code Ann. § 15-12-102(5).

How long does it last?
If durable, the 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. Idaho Code Ann. § 15-12-110.

How does one end it?
The principal may revoke a POA by either substantial compliance with a method provided in the POA document for revoking the POA or any method manifesting clear and convincing evidence of the principal’s intent to revoke the POA. Idaho Code Ann. § 15-12-110.

What does an example look like?
Idaho provides a statutory POA form at Idaho Code § 15-12-301. An optional agent’s certification form is available at Idaho Code § 15-12-301. Idaho Legal Aid Services, Inc. provides a form here.

What else should one know?
Idaho’s POA is based on the Uniform Power of Attorney Act.

Last Updated November 2022

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