Special Power of Attorney in Oregon
Full Question:
Answer:
A power of attorney is a legal instrument that individuals create and sign that gives someone else the authority to make certain decisions and act for the signer. The person who has these powers is called an "agent" or "attorney-in-fact." The signer is the "principal." As a principal, if the principal's decisions conflict with those of the agent, the principal's decision will govern, assuming that the agent confers with the principal prior to taking an action. If an agent has acted on the principal's behalf and acted within the scope of authority granted by the power of attorney, then the principal may be obligated by the terms and conditions of his actions.
The person designated to be the agent assumes certain responsibilities. The agent is obligated to act in the principal's best interest. The agent must always follow the principal's directions. Agents are "fiduciaries," which means that the agent must act with the highest degree of good faith in behalf of their principals. The agent has a fiduciary duty to not act beyond the scope of the powers granted. A fiduciary must avoid "self-dealing" or "conflicts of interests" in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him or her. The agent must keep his money separate from the principal's; keep detailed records concerning all transactions he engages in on the principal's behalf; not stand to profit by any transaction where the agent represents the principal's interests; and not make a gift or otherwise transfer any of the principal's money, personal property, or real estate to himself unless the power of attorney explicitly states he can do so.
Generally, an agent will not be liable for the debts of the principal, unless the debts are a result of the bad faith or dishonest behavior of the agent or unless the agent acquires the debts jointly with the principal. Upon the death of the principal, the executor of his or her estate will handle the payment of outstanding debts.
A special power of attorney defines the agent's powers in a specific way, so that the agent may only take limited actions on behalf on the principal, as enumerated in the power of attorney. A special power of attorney may be limited in duration, and may also be durable, meaning that it is effective even after the incapacity of the principal. The principal's death terminates the power of attorney, and a power of attorney may be revoked by delivering a written revocation to the agent.
Our power of attorney forms are state-specific and designed to comply with state statutes. I am prohibited from giving legal advice or opinions, as this service provides information of a general legal nature.
The follwing are OR statutes:
127.045 Duty of attorney-in-fact or agent under power of attorney.
Unless otherwise provided in the power of attorney document, an
attorney-in-fact or agent must use the property of the principal for
the benefit of the principal.
127.005 When power of attorney in effect; accounting to conservator.
(1) When a principal designates another an attorney-in-fact or agent by
a power of attorney in writing and the writing does not contain words
that otherwise limit the period of time of its effectiveness:
(a) The power of attorney shall remain in effect until the power is
revoked by the principal;
(b) The powers of the attorney-in-fact or agent are unaffected by the
passage of time; and
(c) The powers of the attorney-in-fact or agent shall be exercisable by
the attorney-in-fact or agent on behalf of the principal
notwithstanding the later disability or incompetence of the principal
at law.
(2) All acts done by the attorney-in-fact or agent under the power of
attorney during any period of disability or incompetence of the
principal at law shall have the same effect and shall inure to the
benefit of and bind the principal as though the principal were not
disabled or incompetent.
(3) If a conservator is appointed thereafter for the principal, the
attorney-in-fact or agent, during the continuation of that appointment,
shall account to the conservator rather than to the principal. The
conservator has the same power that the principal would have, but for
the disability or incompetence of the principal, to revoke, suspend or
terminate all or any part of the power of attorney or agency.
(4) This section does not apply to powers of attorney for health care
executed under ORS 127.505 to 127.660 and 127.995.
127.005 When power of attorney in effect; accounting to conservator.
(1) When a principal designates another an attorney-in-fact or agent by
a power of attorney in writing and the writing does not contain words
that otherwise limit the period of time of its effectiveness:
(a) The power of attorney shall remain in effect until the power is
revoked by the principal;
(b) The powers of the attorney-in-fact or agent are unaffected by the
passage of time; and
(c) The powers of the attorney-in-fact or agent shall be exercisable by
the attorney-in-fact or agent on behalf of the principal
notwithstanding the later disability or incompetence of the principal
at law.
(2) All acts done by the attorney-in-fact or agent under the power of
attorney during any period of disability or incompetence of the
principal at law shall have the same effect and shall inure to the
benefit of and bind the principal as though the principal were not
disabled or incompetent.
(3) If a conservator is appointed thereafter for the principal, the
attorney-in-fact or agent, during the continuation of that appointment,
shall account to the conservator rather than to the principal. The
conservator has the same power that the principal would have, but for
the disability or incompetence of the principal, to revoke, suspend or
terminate all or any part of the power of attorney or agency.
(4) This section does not apply to powers of attorney for health care
executed under ORS 127.505 to 127.660 and 127.995.
