Financial Power of Attorney
What is it?
Iowa law allows individuals to give authority to another person to make financial decisions on their behalf. See Iowa Code chapter 633B. The person who is given the authority to make the financial decisions is called the “agent” and must agree to serve in this role. The person giving the authority to make the health care decisions is called the “principal.” When the person signs, or “executes,” a financial power of attorney, the person gives the agent the ability to make decisions on the principal’s behalf. A person can name a “successor” agent who they want to serve as their agent if the first person named cannot or is not willing to serve. A person can name more than one agent to serve together as co-agents but this can lead to problems if they cannot agree. The agent is required by law to act in “good faith” and, if they know, to do what they believe the principal would do. If the agent is unsure in any situation, the agent must act in the best interests of the principal. The agent is generally not allowed to use or manage the principal’s money or property to benefit the agent in any way.
What does it mean that the power of attorney is "durable"?
"Durable" means that the power of attorney is effective even if you are incapacitated, which is another way of saying that you are not able to make your own decisions. A durable power of attorney is no longer effective once you die as there are no financial decisions to be made for you then.
There may be times a person wants a power of attorney to be "non-durable" so that the power ends when the principal does not have the ability to make decisions or dies. This is usually used for one-time things. An example might be that you have investments and would like an investment professional to manage them for you. That person can manage your money on a daily basis but once you can no longer make decisions, their ability to do that for you ends.
Why is it important?
A financial power of attorney gives another person access to your finances and the power to make financial decisions for you. It is a very important legal document that must be executed exactly as provided by law. Though forms are available, getting the help of an attorney to create and execute the document is not required but is helpful, as is reading and understanding the law before creating and executing the document. A person creating a financial power of attorney document needs to understand the powers they are giving to the agent, which can include authority over all of your money and belongings. An attorney can also discuss important issues including whether the principal wants to allow or not allow gifts to the agent or to pay money to the agent for serving as an agent. Because a financial power of attorney involves access to money and property, the law allows the principal and certain other people the ability to demand information from the agent and to ask the court to review what the agent has done if there is concern about the agent not properly using the agent’s authority. You can also use this document to name someone to serve as your guardian or conservator if you ever need one. Only the court can appoint a guardian or conservator, but you can tell the court who you would choose to make those decisions for you.
How is it created?
In order to be valid or recognized by law, the financial power of attorney must be executed exactly as required by law. It must be signed by the principal and must be notarized or acknowledged [define]. If the principal is unable to sign, the document can be signed by someone else other than the agent in the presence of the principal if the principal tells them to sign it.
When does it take effect and when does it end?
The person executing the financial power of attorney can decide if the power is effective immediately, becomes effective on a certain date, or when a certain event occurs. The law assumes the financial power of attorney becomes effective immediately unless the person executing it says differently in the document. You can execute a financial power of attorney and still make financial decisions for yourself if you are able. You can also say in the financial power of attorney if you want it to become effective when you are incapacitated and who decides if you are incapacitated. If you do not say who can make that decision or that person won't make the decision, a doctor or psychologist or a judge or other appropriate person can make it.
The law assumes that the person executing the financial power of attorney document wants it to be durable so that it continues even if the principal is incapacitated. A principal can revoke a financial power of attorney at any time if they are able and should tell the agent and any others who know of it that it has been revoked. Someone can help you tell the agent or others that you are revoking the financial power of attorney.
A financial power of attorney automatically terminates, or ends, when the principal dies. Once you die, the agent no longer has authority under the law to access your financial information or make financial decisions about your money or property.
Where can I get more information?
The Office of Public Guardian (OPG) is an office of the State of Iowa. It provides information about guardianship, conservatorship, and other substitute decision making options for supporting older adults and adults with disabilities; education and resources for guardians and conservators; and guardianship and conservatorship services if there is no other person who can or will serve. A person must qualify for services and there is an application process.
- Iowa Legal Aid is a non-profit agency that provides legal assistance to low-income and vulnerable Iowans. Information can be found on the Iowa Legal Aid website and they can be reached by phone at 800-532-1503 or, for Iowans 60 or older, 800-992-8161. The Iowa Legal Aid website provides information about financial power of attorney documents here.
- Iowa Find-A-Lawyer is an online directory of attorneys provided by the Iowa State Bar Association. Information can also be found in its Older Iowans Handbook.
- The American Bar Association website provides information about power of attorney documents.
- The University of Iowa provides an online Financial Power of Attorney form based on the form provided by statute. While the law does not require an attorney prepare or review a financial power of attorney, it is helpful and important to speak with an attorney.