Shared Decision Making – Power of Attorney

General Power of Attorney | A general power of attorney allows a person to act on behalf of the principal in any and all matters, as allowed by the state. The agent under a General Power of Attorney agreement may be authorized to take care of issues such as handling bank accounts, signing checks, selling property and assets like stocks, filing taxes, etc. This type of POA goes into effect immediately and ends upon the incapacitation of or death of the principal. It is only valid while the principal is competent or, in other words, while the principal is able to make decisions for him or herself and understand the consequences of those decisions. This is because the principal needs to be aware enough to agree to have control released on their behalf.

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Decision-making support for adults with autism:  A general POA is the type most likely to be useful to an individual with autism and his or her family. While the individual with autism keeps decision-making power for themselves, it can permit parents or other family members who have a general power of attorney to make decisions for the individual as well. For example, a parent with a general POA can help an adult child manage their finances or pay bills.

Durable Power of Attorney  |  A durable power of attorney goes into effect immediately. However, this POA stays in place even if the principal becomes incapacitated. It ends only upon the death of the principal. This is most commonly used for a principal who does not understand financial matters, and it usually allows the agent to sign checks or buy and sell real estate on behalf of the principal.

The difference between a general and a durable POA is when the POA ends. The General POA ends when the principal becomes incapacitated. The Durable POA will stay in effect until the death of the principal and regardless of whether the principal is incapacitated.

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Decision-making support for adults with autism:  Autism is a developmental disability that is pervasive and life-long. The “incapacitation” anticipated by the durable POA is not a legal inability to make and understand the consequences of decisions that may be due to an individual’s autism. Instead, that future, possible incapacitation would normally be due to potential injury, illness, or old age. Accordingly, this type of POA would not be the best option for families considering decision making support for individuals turning 18.

Limited Power of Attorney  |  A limited power of attorney is used as a delegation of a principal party’s authority for an agent’s use over specific matters. Here, one individual can give another individual the right to perform certain tasks in his or her name, while still maintaining full and exclusive autonomy with respect to other tasks.

This should be differentiated from general power of attorney, with which the agent can do nearly anything, such as selling assets, transferring funds, or making gifts or investments. An agent with limited power of attorney can handle a specific task, such as buying property or opening a bank account for the individual who needs the assistance.

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Decision-making for adults with autism: This type of POA is transactional, like filing loan applications or retitling a deed. It is reserved for specific instances versus broader powers.

Springing Power of Attorney   |  This POA goes into effect when and only when the principal becomes incapacitated, hence the name Springing Power of Attorney. In New Jersey, all POA documents require that both the principal and the agent are competent and be of sound mind at the point at which they are executed. However, if – at some future point – the principal with a springing POA loses the ability to make decisions, the agent can then act on his or her behalf.

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Decision-making for adults with autism: This type of POA is the least likely to apply to families seeking decision making support individuals with autism. Since autism is a life-long disability, Springing POA would not apply to an individual who lacks legal decision-making capacity as a result of autism.