Instrument: Power of attorney (POA)

What is it for?
The POA is a written document by which a principal designates an agent to act on his or her behalf with regard to the principal’s property. The “principal” is an adult with capacity who executes the POA and the “agent” is a person named in a POA to act on the principal’s behalf, and is synonymous with the term “attorney-in-fact”.

What does it do?
The agent has the authority to act on the principal’s behalf as to all lawful subjects and purposes, unless otherwise limited by the terms of the POA. Vt. Stat. Ann. tit. 14, § 3504(a). In doing so, the agent has a fiduciary duty to the principal. This generally requires the agent to not exceed the scope of the POA, act in good faith and in the interest of the principal, refrain from self-dealing, avoid conflicts of interest, and exercise a reasonable degree of care, among other duties. Vt. Stat. Ann. tit. 14, § 3505(a). Agents, however, may not make health care decisions for the principal pursuant to a POA; instead, an advance directive is required. Vt. Stat. Ann. tit. 14, § 3504(b)(1).

In order for the POA to be durable, that is, to remain effective after the principal becomes incapacitated, it must state the following, “This power of attorney shall not be affected by the subsequent disability or incapacity of the principal,” or use similar words to show the principal’s intent for the agent to exercise authority notwithstanding the principal’s subsequent “disability or incapacity.” Durable POAs must also specify the manner in which the disability or incapacity is to be determined. Vt. Stat. Ann. tit. 14, § 3508(a) & (b).

How does one make it?
A POA must be in writing, name one or more persons as agent, give the agent power to act on behalf of the principal, and be signed in presence of one witness (other than the agent or the notary) and acknowledged before the notary. Vt. Stat. Ann. tit. 14, §§ 3502(a) & 3503(a).

When does it come into effect?
Generally, a POA enters into effect on the date it is executed, unless the POA specifies either a date or future event (such as the principal’s incapacitation) upon which it will become effective. Vt. Stat. Ann. tit. 14, § 3502(c). However, at any time after the principal’s signature but prior to actually exercising authority, an agent must also sign a statement accepting the appointment as agent and understanding the agent’s legal powers and duties. Vt. Stat. Ann. tit. 14, § 3503(e).

How long does it last?
In Vermont, POAs are not presumed to be durable. Therefore, a POA must specifically state that it will remain effective after the “disability or incapacity of the principal.” Vt. Stat. Ann. tit. 14, § 3508. The latter occurs if the principal has a physical or mental condition which prevents the principal from directing the actions of the agent.

How does one end it?
A POA generally ends when the principal revokes the instrument or dies. Vt. Stat. Ann. tit. 14, § 3507. If the POA does not expressly state it is durable, then it also ends upon the “disability or incapacity of the principal.” A court may also choose to end a previously executed POA in the course of appointing a guardian for the principal. Vt. Stat. Ann. tit. 14, § 3509.

What does an example look like?
Vermont does not have a statutory POA form. Any POA that complies with the statutory provisions shall be presumed valid. Legal Services Vermont and Vermont Legal Aid have developed a sample form available here.

What else should one know?
Vermont’s POA is not based on the Uniform Power of Attorney Act.

Last updated April 2021

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