Attorney Power Of Attorney 3 — Questions and Answers
Question 1: Which of the following individuals generally CANNOT serve as a witness to the signing of a power of attorney?
- A neighbor with no financial interest
- The named agent (attorney-in-fact) (Correct answer)
- A licensed notary public
- A coworker of the principal
Correct answer: The named agent (attorney-in-fact)
The named agent is disqualified as a witness because of the inherent conflict of interest in witnessing a document that grants them power.
Question 2: An attorney-in-fact who uses the principal's funds for personal benefit has committed:
- A breach of contract only
- Breach of fiduciary duty and potentially criminal theft or embezzlement (Correct answer)
- A civil offense with no criminal liability
- An act that is permissible if the POA does not expressly prohibit it
Correct answer: Breach of fiduciary duty and potentially criminal theft or embezzlement
Self-dealing by an agent constitutes breach of fiduciary duty and, when assets are taken for personal use, may also constitute theft or embezzlement under criminal law.
Question 3: A healthcare power of attorney (HCPOA) authorizes the agent to make decisions regarding:
- The principal's financial investments during hospitalization
- Medical treatment and healthcare decisions when the principal is incapacitated (Correct answer)
- The distribution of the principal's estate at death
- Payment of medical bills from the principal's accounts
Correct answer: Medical treatment and healthcare decisions when the principal is incapacitated
An HCPOA grants authority specifically over medical and healthcare decisions, separate from any financial powers.
Question 4: Under most state laws, a power of attorney executed in State A is used in State B. Which principle governs its validity?
- It is void because it was not executed under State B law
- It is presumed valid if it was validly executed under State A law (Correct answer)
- It must be re-executed in State B to be enforceable
- Federal law preempts state law and determines validity
Correct answer: It is presumed valid if it was validly executed under State A law
Most states, following the UPOAA, presume that a POA valid in the state of execution is valid in other states, promoting portability of these documents.
Question 5: A 'general' power of attorney typically grants the agent authority to:
- Act only in medical emergencies
- Perform a single specified transaction
- Handle a broad range of financial and legal matters on the principal's behalf (Correct answer)
- Make decisions only about real property
Correct answer: Handle a broad range of financial and legal matters on the principal's behalf
A general POA grants broad authority covering most financial, legal, and business matters, as opposed to limited POAs restricted to specific acts.
Question 6: If a principal becomes incompetent BEFORE signing a power of attorney, what is the legal effect of the document?
- It is voidable at the agent's option
- It is void because the principal lacked capacity at execution (Correct answer)
- It becomes effective upon the principal regaining capacity
- It is valid if witnessed by two physicians
Correct answer: It is void because the principal lacked capacity at execution
A valid POA requires the principal to have legal capacity at the time of signing; a document signed by someone already lacking capacity is void ab initio.
Question 7: Which document controls healthcare decisions when a patient is terminally ill but a healthcare POA has NOT been executed?
- The patient's last will and testament
- The attending physician's medical judgment, guided by family consensus and state law (Correct answer)
- A general financial power of attorney
- The hospital's standard care protocol exclusively
Correct answer: The attending physician's medical judgment, guided by family consensus and state law
Without an HCPOA, decision-making typically falls to the attending physician in consultation with next-of-kin, governed by state default surrogate decision-making statutes.
Attorney Power Of Attorney 3
Which of the following individuals generally CANNOT serve as a witness to the signing of a power of attorney?