Learn about the different kinds of powers of attorney, how each works, and the requirements for each. Information also is provided about powers of attorney and the VA: what the VA requires, how to obtain the appropriate forms to ensure your power of attorney is recognized, and what to do if the VA will not recognize your power of attorney. Also find helpful information about certain situations caregivers of veterans might face when dealing with powers of attorney.
For more complex legal situations consult Lawyers for Heroes your next step pro bono legal resource for veterans and their families.
What is a power of attorney?
A power of attorney is a document in which an individual (referred to as the principal) grants certain authority to another person (the agent, or attorney in fact) to act on his or her behalf. An agent does not have to be a lawyer. In most states, the agent can be an adult or an institution. However, the agent should be someone the principal knows well and whom the principal completely trusts to manage his or her affairs.
A power of attorney may be very specific — for example, authorizing an agent to sell the principal’s car and nothing more. Or, it can be very broad, allowing the agent to do almost anything on the principal’s behalf. Some powers might not be presumed to be within the scope of the power of attorney unless they are specifically spelled out — for example, an agent might not have the power to make gifts or loans or file tax returns on behalf of the principal unless the power of attorney says so. The authority, or powers, granted in a power of attorney are those described in the document. Reading the power of attorney is essential to knowing what can and cannot be done using the document. There are powers that can never be granted in a power of attorney, such as the power to vote in a public election or the power to make or alter a will, even if included in the document; state law generally prohibits these actions. Also, a power of attorney is considered “legal” in the state where it is executed only if it meets that state’s requirements — and every state has different requirements. There is no single, standardized format for powers of attorney, as they vary from state to state. There can be different requirements for signatures, dates, witnesses, and notarization. A helpful chart can be found here that will tell you the requirements in your state and where to find the law governing powers of attorney.
There are a few different types of powers of attorneys, each with its own quirks and each handled differently by the VA and other government agencies.
The most broad type of power of attorney is a general power of attorney, which grants a person broad authority to handle all types of financial matters. However, in most states, a general power of attorney is not valid if the principal becomes incapacitated; for a power of attorney to remain in effect after the agent’s incapacity, it must be a durable power of attorney. Incapacity in this context simply means the principal must have the mental capacity to understand what he or she is doing when granting a power of attorney. If the principal has physical and/or mental impairments creating a condition that prevents this understanding, he or she cannot grant any type of power of attorney — any power of attorney must be granted before the principal becomes incapacitated.
A durable power of attorney gives the agent the legal authority to handle the principal’s financial affairs, pay the bills, deposit and withdraw money from the bank, and so on; it is valid even if the principal becomes incapacitated. In fact, a durable power of attorney can be structured to take effect only if you become incapacitated, thereby ensuring your property is protected in the event of your incapacity. Be warned, there are circumstances in which it might be hard to determine incapacity or in which the incapacity is intermittent. There even could be situations in which the ill person is out of the country and difficult to diagnose or simply is missing.
As noted above, state laws vary, but a durable power of attorney generally has to be signed and notarized and state it shall be durable; that is, that it will continue in effect after the principal becomes incapacitated. It terminates at the principal’s death or at a time the principal specifies. A durable power of attorney also can be canceled at any time, but only if the principal has capacity.
The third type of common power of attorney is a health care durable power of attorney, or medical power of attorney. Such a power of attorney lets the principal decide who has the right to make medical decisions for him or her should the principal become incapacitated. A medical power of attorney allows the agent to make medical decisions but doesn’t provide him or her control over the principal’s bank account and other nonmedical affairs. An alternative to a health care power of attorney is a living will, which allows the drafter to specify the treatments he or she wants or doesn’t want. Some living will forms include appointment of an agent for health care decisions. State law governs power of attorney and health care decision making, and the laws vary from state to state.
There can be a wide variation in formats for powers of attorney, depending on a particular state’s requirements. Complicating matters, governmental agencies, such as the VA and the Veterans Health Administration (VHA), have their own internal policies about how a power of attorney must be formatted to be accepted — the formatting requirements under one state’s law might not be sufficient to meet the VA’s own standards. Many states do not require a power of attorney be notarized, yet VA regulations require that some powers of attorney be notarized. If your veteran executed a power of attorney under the laws of a state that does not require notarization, and thus the power of attorney is not notarized, the VA might not accept it as valid. For the VA rules defining what a power of attorney must contain if you want to be appointed as a veteran’s representative for purposes.
If filing claims with the VA, the federal regulations are available here. The VA, however, will accept a power of attorney as valid for health care decision-making purposes, even if it is not notarized, if VA Form 10-0137, “VA Advance Directive: Durable power of attorney for Health Care and Living Will,” is completed.
These are the requirements for the VHA, which administers the medical programs of the VA. If your veteran needs to execute a power of attorney to allow someone else — such as a lawyer or veterans service organization — to assist with obtaining his or her benefits through the Veterans Benefits Administration, there are slightly different requirements spelled out in this federal regulation.
Powers of attorney prepared by military legal assistance attorneys often include expiration dates. If your local VA rejects your power of attorney, it sends it to the VA regional counsel for review. You can appeal the outcome of this decision if you disagree. Consider consulting legal assistance at this point. Once the review is concluded, the VA notifies you of the outcome. Consult the American Bar Association's Directory of Programs for organizations that might be able to help with this.
Your best course is to have a general durable power of attorney and a health care power of attorney. Note: If your wounded veteran already has been declared incompetent, he or she will not be able to sign a legally valid power of attorney — a principal must meet the state’s capacity requirements at the time he or she signs a power of attorney for it to have any power. Health care and financial matters can be included in the same document but are most frequently done as two separate documents.
The VA tends to use terminology that has very specific meanings under the law but has very different meanings in the way it is used by the VA. Incapacity in the power of attorney context means that the principal has a physical and/or mental condition preventing him or her from knowingly granting power of attorney to an agent. If there is a question as to whether a principal had capacity to grant a power of attorney and a challenge is raised in a legal proceeding, the question of capacity is resolved by a court after a thorough review and assessment of objective evidence about a person’s physical and mental condition. The VA determines someone incompetent based on a VA rating decision, a court decree, or both a VA rating decision and a court decree. Often, incapacitated and incompetent in both instances will mean the same thing.
A state’s rules that governs the necessary elements of a power of attorney may be insufficient for VA purposes. Consider obtaining help from an attorney in preparing a power of attorney to ensure the VA will recognize it and it will allow you to advocate for your veteran. In the alternative, if your veteran is not incompetent, he or she may execute VA Form 21-22a to grant you power of attorney to handle his or her claim for VA benefits with the VA on a one-time basis if VA does not accredit you. (An individual must otherwise first be accredited by the VA as an agent, an attorney, or a veteran service officer to represent a claimant before the VA.) Note: This is not a power of attorney recognized by state law — it can be used only when dealing with the VA. The VA also has its own form for a durable power of attorney for health care (i.e., medical power of attorney) that will be recognized by the VA. This is VA Form 10-0137. Preparing one or both of these forms, preferably in combination with all three forms of power of attorney, should help ensure the VA will recognize your status as an agent of your veteran.
This is a difficult situation for which you likely will need an attorney’s assistance. As a general rule, anyone who has given a power of attorney to someone else also has the right to cancel that power of attorney. The process can be as simple as giving written notice to the agent named in the power of attorney that the principal intends to cancel the power of attorney. But if the principal, such as in this example, is now incapacitated, he or she might not have the capacity to either cancel the power of attorney and/or give a new power of attorney to someone else (in this example, the parent).
If the parent has not been named as a secondary agent and if the spouse has not filed for divorce or legal separation — which might, depending on state law, result in the power of attorney automatically being canceled — the only option available to the parent is to file for legal guardianship over the veteran. Ultimately, it is strongly suggested you see an attorney for assistance with any kind of power of attorney cancellation matter.
One last note on cancellation of powers of attorney: If a principal has the capacity to terminate a power of attorney and wishes to do so and if the principal is a veteran who might be involved (or will be involved) in the VA system, notice of the cancellation should be given both to the agent as well as to the VA so the VA is aware the agent no longer may advocate for the veteran.
Powers of attorney executed by military legal assistance attorneys — such as those executed in anticipation of a deployment — likely will have expiration dates, so it is not uncommon for this to occur. Unfortunately, if the veteran lacks capacity to execute new powers of attorney, nothing can be done to extend or renew the expired power of attorney. Your option at this stage is to file an action for a guardianship.
There is no power of attorney that would give a person the ability to control the disposition of remains when a servicemember is killed on active duty. Instead, disposition of remains would be controlled by the person named on DD Form 93, “Record of Emergency Data,” as the “person authorized to designate disposition.” If no designation is made on DD Form 93, the right to dispose of remains would be handled by a blood relative, irrespective of whether that relative had a power of attorney.
If a parent does not have a power of attorney but the spouse does, the parent has no legal say in the veteran’s medical decisions. If the spouse files for divorce or legal separation, that automatically might terminate an existing power of attorney; but even then, the parent still does not have legal say in the veteran’s medical decisions unless the veteran has capacity to execute a new power of attorney in his or her parents’ favor. In absence of a power of attorney for health care or another document naming a health care agent, state law or VA policy will determine who can make health care decisions for a person who cannot make health care decisions. Commonly the first choice is a spouse, if there is no spouse, or the spouse is unable or unwilling to make health care decisions, health care providers turn to adult children. If there are no adult children or they are unable or unwilling to help, parents are next in many situations. This process continues on through family based on relationship to the patient. Note: This process works for health care decisions only and does not extend to financial decisions.
There is no limitation on how many agents may be named in a power of attorney. Thus, a veteran may name both his or her spouse and parents to serve as agents under a power of attorney, either concurrently (i.e., all serving as agents at the same time) or in the alternative — for example, naming a spouse as the primary agent, with the parents to serve as agents only if the spouse leaves, becomes incapacitated, or dies.
That said, before giving a power of attorney to multiple agents, a principal should consider how it would work in practice and what might occur if there is conflict among the agents — such as if the spouse advocates for one form of medical treatment and the parent prefers another. Consider obtaining legal advice and assistance to execute a power of attorney if you intend to name more than one agent.
Ideally, a power of attorney should include a waiver clearly stating it is valid to give the agent access to all medical records and information governed by the Privacy Act and the Health Insurance Portability and Accountability Act (HIPAA) (assuming the principal wishes to provide that type of access to the agent). If a privacy officer at a VA facility determines for some reason it cannot release HIPAA-protected information to an agent named in a power of attorney, it may be appealed.