Instrument: Power of Attorney (POA)
What is it for?
The power of attorney (POA) allows an adult (the “principal”) to authorize an “attorney-in-fact” to make decisions about the property of the principal. The attorney-in-fact may make decisions and act with respect to the principal’s property whether or not the principal has capacity to do so. Note that the POA does not apply to health care decisions; any authority to make health care decisions on behalf of the principal must comply with Minnesota’s law on health care directives, found at Minn. Stat. Ann. § 145C.
What does it do?
Any “competent adult” may designate another person as the person’s attorney-in-fact by a written POA. Minn. Stat. Ann. § 523.01. Any action taken by the attorney-in-fact binds the principal, as well as the principal’s successors and heirs, as if the principal had taken the same action. Minn. Stat. Ann. § 523.12. Third parties must accept the actions taken by the attorney-in-fact on the principal’s behalf as if the principal had taken them. Minn. Stat. Ann. § 523.20.
Attorneys-in-fact must act with the interests of the principal utmost in mind; act in good faith for the best interest of the principal, using due care, competence, and diligence; inform the principal (at the principal’s request) of actions taken on the principal’s behalf; and identify as the principal’s attorney-in-fact whenever signing for the principal, among other duties. Minn. Stat. Ann. § 523.21.
A POA is durable, meaning the attorney-in-fact’s authority continues even if the principal is determined to be incapable of making decisions, if the POA contains language such as “This power of attorney shall not be affected by incapacity or incompetence of the principal” or “This power of attorney shall become effective upon the incapacity or incompetence of the principal,” or similar words showing the intent of the principal that the authority conferred is exercisable notwithstanding the principal’s later incapacity or incompetence. Minn. Stat. Ann. § 523.07.
“Incapacity” for the purposes of a POA means an impairment of such an extent that an individual lacks “sufficient understanding or capacity to make personal decisions, and who is unable to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological and supported decision making assistance.” Minn. Stat. Ann. § 524.5-102.
How does one make it?
A POA must be in writing, dated and signed by the principal, as well as signed by the attorney-in-fact. Minn. Stat. Ann. § 523.23. In the case someone else signs the POA on the principal’s behalf or if the principal uses a mark rather than a signature, then the POA must also be notarized. Minn. Stat. Ann. § 523.01.
When does it come into effect?
The attorney-in-fact’s authority becomes effective immediately unless the POA itself specifies that the authority only comes into effect at a future date or upon a future contingency, such as the principal’s incapacity.
How long does it last?
A POA ends either when the principal dies, upon the POA’s expiration date (if specifically stated in the POA), or in the case of a POA to the spouse of the principal, upon the commencement of proceedings for dissolution, separation, or annulment of the principal’s marriage. Minn. Stat. Ann. § 523.08.
How does one end it?
A principal may revoke a POA only by a signed, written revocation document. Minn. Stat. Ann. § 523.11.
What does an example look like?
Minnesota provides a sample POA form at Minn. Stat. Ann. § 523.23.
What else should one know?
Minnesota’s POA is not based on the Uniform Power of Attorney Act.
Last updated June 2022