Instrument: Power of attorney (POA)
What is it for?
Power of attorney (POA) allows an adult (the “principal”) to authorize another adult (the “attorney in fact”) to act in place of the principal.
What does it do?
The POA can authorize an agent to make decisions about financial matters, give health care decision-making authority, or both. Ind. Code Ann. §§ 30-5-2-2 to 19.
If the POA authorizes an attorney in fact to make health care decisions for the principal, then it must contain specific language provided at Ind. Code Ann. § 30-5-5-17. Note, however, that any health care powers granted to an attorney in fact in a POA that is executed after December 31, 2022 are void. Ind. Code Ann. § 30-5-5-16(c).
All acts performed by an attorney in fact have the same effect, provide the same benefit, and bind the principal in the same manner as if the principal had acted on the principal’s own behalf. Ind. Code Ann. § 30-5-8-1. Also, third parties who rely in good faith on a POA are immune to liability. Ind. Code Ann. § 30-5-8-7.
How does one make it?
To be valid, a POA must both name an attorney in fact in writing and give the attorney in fact either general or specific powers to act on behalf of the principal. It must be signed either by the principal or at the principal’s direction in the presence of a notary public. Should a POA be signed at the direction of the principal, the notary must state that the individual who signed the power of attorney on behalf of the principal did so at the principal’s direction. Ind. Code Ann. § 30-5-4-1.
When does it come into effect?
A POA may come into effect either immediately upon execution, specify the date on which the power will become effective, or become effective upon the occurrence of an event, such as a determination of incapacity. Ind. Code Ann. § 30-5-4-2.
Unless otherwise specified in the POA, a physician, licensed psychologist, or judge may determine in writing that the principal incapaciated, which will trigger the attorney in fact’s authority to act on the principal’s behalf.
How long does it last?
Unless otherwise stated, the POA terminates when the principal dies. Ind. Code Ann. § 30-5-10-4. Also, a POA is presumed to be “durable,” meaning that it remains in effect following a determination that the principal is incapaciated, unless the POA states otherwise. Ind. Code Ann. § 30-5-10-3.
How does one end it?
A duly executed POA may be revoked only in a writing that identifies the POA being revoked and is signed by the principal. However, the revocation only becomes effective if the attorney in fact or third party has actual knowledge of the revocation. Ind. Code Ann. § 30-5-10-1.
What does an example look like?
Indiana does not have a statutory POA form.
What else should one know?
Indiana’s POA statute is not based on the Uniform Power of Attorney Act.
Last updated April 2021