If the maker of a Power of Attorney document (be it for health care or general management of business affairs) cannot consent to a change in the named Attorney-in-Fact, no other person has the authority or right to ‘transfer’ that responsibility to another, even another family member.
In most cases, photocopies are sufficient.
A Limited Liability Company does have the legal authority to appoint an individual as “Attorney in Fact” using a Power of Attorney document.
But there are two organizational specifics that must be reviewed prior to making such a determination for the LLC.
A Power of Attorney document is valid until it is revoked.
When two such documents are executed, the issue becomes whether or not the second document was intended to revoke and take precedence over the first one.
These two documents are used for decidedly different purposes all together. A Power of Attorney for Healthcare (often called an ‘Advanced Healthcare Directive’ or a ‘Living Will’) covers a separate series of issues versus a Durable Power of Attorney.
Power of Attorney cannot be assigned by the Attorney-in-Fact (the person granted the responsibility of Power of Attorney) named in the document to another person of his or her choice.
There are some very important differences between the two types of Power of Attorney documents.
Most “general” Power of Attorney documents have a specific provision about transferring property contained within them, granting the attorney-in-fact the ability to undertake such a property transfer process.
But if the language about being able to transfer property is not stated specifically in the document (and different POAs are drafted differently), then the attorney-in-fact most likely lacks the authority to transfer property.
Courts in most states hold the Attorney-in-Fact (the person granted the powers under the document) in a fiduciary capacity — in other words, the attorney-in-fact owes the person who gave the power of attorney (the grantor) a fiduciary duty.
The person creating a Power of Attorney document can still make his or her own life decisions.