If you think you might be incarcerated for a while (more than a month), you will want to look into a Power of Attorney (POA). If an incarcerated individual wants someone to handle their affairs while they are in prison, a POA can be a useful tool. For example, if the individual has financial or legal matters that need attention, a POA can give their designated agent the authority to handle these issues on their behalf.
Of course, it’s always better to do this before you’re incarcerated, but it can also be done using an attorney and the notary services available at your correctional facility.
A power of attorney (POA) is a legal document that allows an individual (the principal) to appoint another person (the agent or attorney-in-fact) to act on their behalf, make decisions, and perform tasks that the principal is otherwise authorized to do.
Types of POAs
Some different types of POAs include:
- General Power of Attorney: This type of POA gives the agent broad powers to handle the principal’s financial and business affairs. They are invalidated if you become incapacitated.
- Limited Power of Attorney: This type of POA restricts the authority of the agent to specific tasks or a limited time period.
- Durable Power of Attorney: This type of POA remains in effect even if the principal becomes incapacitated. This should typically not used if you are in fairly good health and don’t anticipate being incarcerated into your elderly years.
- Health Care Power of Attorney: This type of POA gives the agent authority to make medical decisions on behalf of the principal in the event that the principal is unable to do so.
- Special or Specific Power of Attorney: This type of POA is used for specific transactions or tasks, such as selling a piece of property.
It is important to note that the powers granted by a POA can be customized to fit the specific needs and desires of the principal.
Choosing the Right Person
When choosing a power of attorney (POA), there are several important considerations to keep in mind:
- Trustworthiness: The person you choose as your agent should be someone you trust implicitly. This is because the agent will have significant authority over your financial and personal affairs.
- Availability & Expertise: Consider whether the person you choose as your agent will be available to perform the tasks that the POA requires. They should also have the necessary skills, knowledge, and experience to handle the responsibilities associated with the POA. For example, if you need someone to manage your financial affairs, you may want to choose someone with financial expertise.
- Reliability: Consider whether the person you choose as your agent will be reliable and dependable when it comes to fulfilling the responsibilities of the POA.
- Willingness: Make sure that the person you choose as your agent is willing to take on the responsibilities associated with the POA. It is also a good idea to have a backup plan in case the person you choose as your agent is unable or unwilling (at the time) to fulfill their responsibilities. This can be done by naming a secondary agent in the POA document.
- Communication: Consider how well you communicate with the person you choose as your agent. It is important that you both are able to effectively communicate about the responsibilities and tasks associated with the POA. You should choose someone who you know will be approved on your contact list in prison – perhaps a spouse, parent, sibling, religious advisor, or personal affairs (not criminal) attorney.
- Location: Consider the location of the person you choose as your agent, especially if the POA requires them to handle matters in a specific place.
- Conflicts of Interest: Make sure that the person you choose as your agent does not have any conflicts of interest that could interfere with their ability to act in your best interests, or have your attorney include such provisions the document, spelling out exactly what the designee can and cannot do. (For example, gifting. You may state that the person may not give away your belongings or assets without your written approval.)
Springing Power of Attorney Provision
This type of POA only becomes effective when a specific event or condition occurs, such as the principal becoming incapacitated. A provision of this kind may be added if you anticipate but are not sure if you will be incarcerated as you can set a condition that the POA only becomes effective if you will, for example, “be sentenced to incarceration with a minimum sentence length of greater than three months.”
Automatic or Elective Revocation
It’s important to note that, typically, the principal can revoke a POA at any time as long as they are of sound mind to do so. If you establish the springing provision, you may specify automatic revocation, such as, “the Power of Attorney shall be revoked should I be released from incarceration.” Note: This may cause hardships for the POA designee, as they may be required to produce validation that you are incarcerated at the time of use.
Seeking Legal Advice
It is always a good idea for an incarcerated individual to seek legal advice before executing a POA. An attorney can help the individual understand the limitations and responsibilities associated with a POA and ensure that the document is properly executed and meets all legal requirements. Your defense attorney may offer these services and can advise you.