A power of attorney (POA) is an important legal tool in which you allow someone else to make crucial decisions on your behalf. This free North Dakota power of attorney form template is customizable and allows someone else (typically called an “attorney-in-fact” or “agent”) to make financial decisions for you. Download the form below.
What Is a Power of Attorney?
A power of attorney is a legal document where one person, referred to as the principal, gives another person, known as the “attorney-in-fact,” authority to make decisions for them. The attorney-in-fact doesn’t need to be an actual attorney, but it should be someone the principal trusts to make sound choices on their behalf.
Powers of attorney can be “durable,” which means they are still in effect if the principal becomes incapacitated or unable to make decisions. Durable powers of attorney typically end with the principal’s death. A general power of attorney that is not durable is no longer effective if the principal becomes incapacitated.
In most states, a power of attorney must be notarized to be effective.
Who Should Use a Power of Attorney Form?
Anyone who wants to ensure that a specific person has the power to act on their behalf should consider a power of attorney. A POA is a powerful, viable tool in any situation where you need someone to act for you. You don’t have to be old or sick.
That said, if someone does become incapacitated, they’re covered. Indeed, if you consult with an estate planning attorney, odds are they will discuss using a power of attorney.
How to Create a Power of Attorney in North Dakota
In order for a power of attorney to be valid in North Dakota, it must be in writing and contain all of the following:
- The name of the agent or attorney-in-fact
- The scope of the POA, meaning the rights and responsibilities the principal is assigning to the agent or attorney-in-fact
- The principal’s signature, which is notarized
- The date
In addition, the principal must be competent to grant the power of attorney. Being competent—sometimes called being “of sound mind”—means having sufficient mental capacity to understand what they’re doing and being able to make their own decisions.
Types of Powers of Attorney
Principals can choose from several types of powers of attorney depending on their needs with regard to duration and scope.
Powers of Attorney Based on Capacity
Principals can select the correct type of power of attorney for them depending on whether they want it to take effect immediately, wait until they become incapacitated, and if they want it to end upon their incapacitation or death.
- General or Non-Durable Power of Attorney. A general power of attorney gives the attorney-in-fact permission to act for the principal on a broad range of personal affairs and financial transactions. It automatically ends when the principal either becomes incapacitated or dies.
- Durable Power of Attorney. A durable power of attorney remains in effect if the principal becomes incapacitated. In North Dakota, durability is not presumed, meaning a power of attorney will not automatically remain effective if the principal becomes disabled or incapacitated.
- Springing Power of Attorney. Unlike general and durable powers of attorney, a springing power of attorney becomes effective only if the principal becomes disabled or incapacitated. It’s also referred to as a “standby power of attorney.”
Limited Powers of Attorney Based on Scope
Limited powers of attorney, as the name suggests, give attorneys-in-fact responsibility over specific topic(s) the principal designates but do not include sweeping rights to make decisions. Common examples include:
- Financial Power of Attorney. With a financial power of attorney, a principal enables an attorney-in-fact to make financial decisions for them, including choices around investments, banking, real estate, loans, insurance and bill-paying.
- Medical Power of Attorney or Durable Power of Attorney for Healthcare. A healthcare power of attorney allows an attorney-in-fact to make healthcare decisions for the principal, according to their wishes and professional medical advice, when the principal cannot do so for themselves. In North Dakota, a healthcare power of attorney is part of the state’s health care directive. You may wish to nominate an alternate attorney-in-fact in case your primary one is unavailable in an emergency.
Who Can Be an Attorney-in-Fact?
Despite the term “attorney-in-fact,” you don’t have to be an attorney to serve in the role. In fact, nearly anyone can be an agent or attorney-in-fact. As long as the person selected is a legal adult and competent, they can serve as an agent.
The most important qualification is not an official one—the attorney-in-fact should be someone the principal trusts. A POA can grant a lot of power to the agent, so it’s essential that the agent be a person likely to do what the principal would prefer.
What Are the Signing Requirements for a Power of Attorney Form in North Dakota?
Signing requirements for a power of attorney differ across states. When you consider the broad powers a POA can grant, the strict requirements make sense.
In North Dakota, a POA must be signed by a notary.
Do You Need a Lawyer to Get a Power of Attorney in North Dakota?
You can use a template like the one provided above to create a perfectly legal power of attorney in North Dakota. You could even write one without a template, as long as it meets all the legal requirements.
Just because you don’t have to have a lawyer draw up your POA, though, doesn’t mean you shouldn’t. A power of attorney can give sweeping powers to the attorney-in-fact, so it’s a good idea to have a qualified lawyer review the document before signing.
Frequently Asked Questions (FAQs)
Do you need a lawyer to get a power of attorney?
While it’s usually a good idea to consult with a lawyer before you become bound by a POA, you don’t need an attorney to get one. As long as the document complies with all the requirements of California, a lawyer isn’t necessary to create a binding power of attorney.
How do you get power of attorney if someone is incapacitated?
Power of attorney can only be granted by a principal of sound mind, so if someone becomes incapacitated, they can no longer appoint someone to be their agent. You can, however, petition the court to make you the person’s conservator or guardian. Once this appointment is made, you can act on the person’s behalf yourself or grant power of attorney to an agent to act for them.
Who can override a power of attorney?
There are only two ways to override a power of attorney. The principal can override the POA—called “revocation”—as long as they are of sound mind. In most states, a revocation must be in writing and clearly express the intention to end the specific power of attorney.
The other way to override a power of attorney is through court action. A court can remove an agent directly or appoint a guardian or conservator to the principal, who could then revoke the POA themselves.
