Should You Use an On-Line Power of Attorney Form? Yes and No

 In Durable Powers of Attorney

Question:

Do you need a lawyer to prepare a durable power of attorney or can you use an on-line form?

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Response:

Everyone should appoint an agent under a durable power of attorney to step in in the event of incapacity (unless, of course, you don’t have anyone you trust to appoint). But lawyers are expensive. So, why not use an on-line form?

I’ve checked out one site, www.powerofattorney.com, that provides free power of attorney forms. I checked out the form for Massachusetts, where I live and practice. It is a basic form with spaces the user can use to fill in his name and address and those of the agents he chooses to appoint. It includes a list of basic powers, but leaves out some that we generally include involving the ability to apply for government benefits and to make gifts. We also generally include a provision holding harmless any bank or other institution that honors the power of attorney because they sometimes require this release. In short, I find this form far better than having no durable power of attorney, but not as strong as those prepared by most attorneys.

One interesting feature of the site is that it provides several types of powers of attorney, including those for medical decisionmaking, taxes and limited to specific powers, such as to convey real estate or pick up mail. In addition, it provides different forms for each state,  including the state’s official forms where those are available. When states have official forms, it’s important to use them because even if they may be less comprehensive or less artfully drafted than other forms available, they are more likely to be accepted by businesses and institutions in that state.

Powerofattorney.com appears to be connected to www.eforms.com, since a pop-up came on the screen that connected me to this second site. Once there, I was led through a series of questions which ultimately created a very credible, if overly complicated, document. In preparing the power of attorney, the program asks if you would like the agent to have certain powers and authority, for instance to manage your bank accounts, continue to operate businesses, apply for government benefits, or to make loans. I expected only those powers I chose to be in the final documents, but in fact all the powers were included with language saying that I “SHALL NOT” grant the powers I did not choose. The form itself instructed me to initial all of the powers, both those I was granting and those I was “negating.”

In short, this site provides a better, more comprehensive document, but one that I find overly wordy. In addition, while it asks good questions about which powers you may or may not want to include in the document, or whether you want it to become effective immediately when signing, it doesn’t explain the consequences of your decisions. For instance, it asks whether you want your signature to be notarized. In Massachusetts, and perhaps in all other states, the power of attorney will be valid if not notarized, but your agent will not be able to sign a deed of real estate on your behalf. This is not explained.

Eforms.com also provides many other forms for wills, leases, promissory notes and even limited liability corporations. Neither site charges for the first document. Eforms provides free documents by providing a seven-day free trial. After that, you can purchase single documents for $45 or become a subscriber for $15 a month or $120 a year.

Ultimately, the answer to the initial question is that you don’t need a lawyer to prepare your durable power of attorney, but you may be better of engaging one to make sure that all of your questions are answered and that you make the right decisions where you have options. It can get rather expensive to hire an attorney just for your durable power of attorney. However, there will probably be little or no incremental cost to having your durable power of attorney drawn up as part of your comprehensive estate planning.

For more information about durable powers of attorney read our Legal Guide.

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