Finance
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
Education
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Health
Instrument: Durable Power of Attorney for Health Care (DPOAHC)
What is it for?
A DPOAHC allows an adult (the “principal”) to appoint another person(s) (the “agent(s)”) to make medical decisions on the principal’s behalf when the principal lacks capacity to do so. The DPOAHC is one kind of “advance directive” or “health care directive” and may, but need not be combined with a living will.
What does it do?
A DPOAHC allows the principal to delegate the right to make medical decisions, including end of life decisions, to one or more surrogate decision makers. Idaho Code Ann. § 39-4504(1).
Unless the DPOAHC states otherwise, the agent has authority to:
(1) request, review and receive any information, verbal or written, regarding the principal’s physical or mental health including, but not limited to, medical and hospital records;
(2) execute on the principal’s behalf any releases or other documents that may be required in order to obtain this information;
(3) consent to the disclosure of this information; and
(4) consent to the donation of any of the principal’s organs for medical purposes. Idaho Code Ann. § 39-4510(1).
When making medical decisions on behalf of the principal, the agent may not consent to or refuse health care contrary to the principal’s other advance directives or the principal’s wishes expressed while the principal was capable of consenting to their own health care. Idaho Code Ann. § 39-4504(1).
All of the following are ineligible to serve as agent for the principal:
(1) the principal treating health care provider;
(2) a nonrelative employee of the principal’s treating health care provider;
(3) an operator of a community care facility; or
(4) a nonrelative employee of an operator of a community care facility. Idaho Code Ann. § 39-4510(1).
How does one make it?
The DPOAHC must be in a dated writing that is signed by the principal and substantially conforms with the form provided at Idaho Code Ann. § 39-4510(1).
The principal may, but not need not register their DPOAHC with the Idaho Department of Health and Welfare. The DPOAHC will remain valid even if not registered. Idaho Code Ann. § 39-4514(10).
When does it come into effect?
The DPOAHC must be effective from the date of execution. Idaho Code Ann. § 39-4512.
How long does it last?
The DPOAHC lasts until revoked or suspended. Idaho Code Ann. § 39-4511A(1).
How does one end it?
The principal can revoke the DPOAHC by intentionally destroying it or directing someone else to do so in the principal’s presence; signing a written revocation stating the principal’s intent to revoke; orally expressing the principal’s intent to revoke; or any other action that clearly manifests the maker’s intent to revoke the advance directive. Idaho Code Ann. § 39-4511A(1).
The principal is responsible for notifying his health care provider of their revocation. Idaho Code Ann. § 39-4511A(2).
What does an example look like?
A statutory form is available in the statute at Idaho Code Ann. § 39-4510(1). DPOAHC forms are also available on the Idaho Secretary of State’s website here.
What else should one know?
No health care provider or health care or insurance plan may condition access to health care or benefits on the execution of a DPOAHC or other advance directive. Nor may the existence of a DPOAHC or other advance directive allow a provider or plan to restrict access or change the terms of any insurance policy. Idaho Code Ann. § 39-4514(8).
Last Updated November 2022
General
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