On February 23, 2012, Prof. Linda S. Whitton of Valparaiso University School of Law lectured on powers of attorney for incapacity planning. Prof. Whitton outlined some important ways in which a power of attorney (“POA”) differs from a guardianship, including cost savings, increased privacy, and absence of court monitoring. Prof. Whitton also discussed various reasons for creating POAs and the two types of POAs an individual can draft: 1) POAs effective immediately, or 2) a “springing” POA, which will become effective at a later date. Prof. Whitton also reviewed several key provisions in the Uniform Power of Attorney Act, including powers granted to an agent, requirements of third parties to accept POAs, and provisions protecting principals from abuse by agents.
Throughout her lecture, Prof. Whitton repeatedly emphasized the importance of trustworthiness and communication in successful use of a POA. Many state laws require an agent to exercise substituted judgment on the principal’s behalf. Thus, the agent’s clear understanding of the principal’s wishes becomes crucial. A principal selects an agent to make decisions on the principal’s behalf. The successful use of any POA thus requires that the agent be trustworthy.