Finance
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
Education
No information available at this time.
Health
Instrument: Health Care Power of Attorney (HCPOA)
What is it for?
A “health care power of attorney” (HCPOA) allows an adult (the “principal”) to appoint one or more other adults (the “agent(s)”) to make health care decisions for the principal during periods when the principal lacks “decision-making capacity.” “Decision-making capacity” is defined as the ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health care decision. Minn. Stat. Ann. § 145C.01.1b.
An HCPOA is a distinct type of health care directive from a “health care instruction,” which is a written statement of the principal’s values, preferences, guidelines, or directions regarding health care. A health care directive may comprise either an HCPOA, a health care instruction, or both. Minn. Stat. Ann. §§ 145C.01 & 03.
What does it do?
On the principal’s behalf, an agent may consent, refuse to consent, or withdraw previously given consent to all forms of health care, except for any treatment, service, or procedure related to assisted suicide. “Health care” means any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a person’s physical or mental condition, and includes the provision of nutrition or hydration parenterally or through intubation, as well as the establishment of a person’s abode within or without the state and personal security safeguards for a person, to the extent decisions on these matters relate to the health care needs of the person. Minn. Stat. Ann. § 145C.01.4.
An HCPOA may designate one agent as well as one or more alternate health care agents to act if the named health care agent is not available. It may include directions for agents about how they should make health care decisions on the principal’s behalf, as well as any limitations on the health care decisions those agents may make or on their access to the principal’s medical records. Note that a principal may also authorize a health care agent to make health care decisions on their behalf even during periods when the principal retains decision-making capacity. Minn. Stat. Ann. § 145C.05.
Agents must “act in good faith.” This means agents must act consistently with a valid health care directive of the principal, a living will, a declaration regarding intrusive mental health treatment, or information otherwise made known by the principal, unless the agent knows the principal has revoked or modified that instrument. If these sources of information do not provide adequate guidance to the actor, then “act in good faith” means acting in the best interests of the principal, considering the principal’s overall general health condition and prognosis and the principal’s personal values to the extent known. Minn. Stat. Ann. § 145C.01.1a.
Generally, a health care agent has the right to visit the principal when the principal is a patient in a health care facility regardless of whether the principal retains decision-making capacity, unless the principal specifies otherwise either in the HCPOA or in person, or a health care provider determines that visitors would endanger the health or safety of the principal, other patients, or the facility in which the care is being provided. Minn. Stat. Ann. § 145C.07.
How does one make it?
An HCPOA must be in writing, dated, state the principal’s name, and either be signed by the principal or signed on behalf of the principal by another person authorized by the principal to do so. It must also either be witnessed by two adults or notarized. Minn. Stat. Ann. § 145C.03. See also Minn. Stat. Ann. § 145B.03. The principal is presumed to have the capacity to execute an HCPOA absent clear and convincing evidence to the contrary. Minn. Stat. Ann. § 145C.10.
When does it come into effect?
Generally, an agent’s authority comes into effect when in the judgment of the principal’s attending physician, advanced practice registered nurse, or physician’s assistant, the principal lacks decision-making capacity, unless otherwise specified in the health care directive. Minn. Stat. Ann. §§ 145C.02 & 06. In certain cases where the principal does not have an attending physician, advanced practice registered nurse, physician’s assistant, the HCPOA may also specify other individuals to determine whether the principal lacks decision-making capacity. Minn. Stat. Ann. § 145C.05.
The agent’s authority ceases when the principal’s attending physician, advanced practice registered nurse, or physician’s assistant determine that the principal has recovered decision-making capacity. Minn. Stat. Ann. § 145C.06. Also, if the principal is determined to retain decision-making capacity for certain health care decisions, then health care providers must obtain informed consent for those health care decisions from the principal. Minn. Stat. Ann. § 145C.07.
How long does it last?
Presumably, until the principal dies or revokes the HCPOA.
How does one end it?
A principal with the capacity to do so may revoke an HCPOA in whole or in part at any time in any of four ways:
(1) destroying the HCPOA instrument or directing another in the principal’s presence to do so;
(2) stating the principal’s intent to revoke the HCPOA in a dated writing;
(3) verbally expressing the principal’s intent to revoke the HCPOA in the presence of two witnesses who do not have to be present at the same time; or
(4) executing a subsequent HCPOA that is inconsistent with the prior one. Minn. Stat. Ann. § 145C.09.
The principal is presumed to have the capacity to revoke an HCPOA absent clear and convincing evidence to the contrary. Minn. Stat. Ann. § 145C.10.
What does an example look like?
Minnesota provides a sample POA form at Minn. Stat. Ann. § 145C.16.
What else should one know?
Unless the principal has otherwise specified in the HCPOA, the appointment of the health care agent is considered a nomination of a guardian. Minn. Stat. Ann. § 145C.07.
Last updated June 2022
General
No information available at this time.