Prior to your deployment, you will have a lot of preparations to make, both military and family-related. By providing your spouse, parent or trusted friend with a power of attorney, you can help to ensure that your affairs are taken care of while you are away.
What is a power of attorney?
A power of attorney is a written document that gives one person the authority to act on another's behalf for any legal or economic issues for a specified period of time. For service members, this period of time is typically the expected length of the deployment plus three months in case the deployment is extended. The individual designated in the power of attorney document should be your spouse, parent or trusted friend since it gives that person the expressed written permission to act on your behalf. A power of attorney is a distinct document from a last will and testament (and who you may have appointed to be your executor). The legal rights of a power of attorney cease at the end of a period of time specified in the document or upon your death. In the event of death, the executor named in the last will and testament assumes the responsibilities of the estate.
Powers of attorney are available at all installation legal assistance offices and should be tailored to a given situation. Although a power of attorney can be very useful, it can be abused as well. You should be careful choosing to whom you will grant authority to "stand in your shoes." Additionally, please note a power of attorney is only as good as a third party's willingness to accept and honor it. Certain third parties, such businesses or banks, may or may not accept a power of attorney at their discretion.
Types of power of attorney
When drafting a power of attorney, you can choose between a general power of attorney or a special power of attorney, and whether the power of attorney is durable or not. If you are married, both you and your spouse should designate a power of attorney prior to your deployment.
- General power of attorney - A general power of attorney gives the designated person the power to perform almost any legal act on your behalf for a specified period of time. This can include the ability to manage bank accounts; sell, exchange, buy or invest any assets or property; purchase and maintain insurance; and enter into any binding contracts on your behalf. Because the authority granted is so broad, this type of power of attorney should only be used if a special power of attorney will not suffice and if the agent is completely trustworthy and financially responsible.
- Special/limited power of attorney - A special/limited power of attorney, allows you to give only special powers to the designated person for a specified period of time. When drafting a special power of attorney, you are required to list the particular actions or decisions over which the designee has power of attorney.
- Durable power of attorney - A durable power of attorney remains valid even if you become incapacitated or unable to handle your own affairs. When drafting a general power of attorney, if you do not specify that you want your power of attorney to be durable, it will automatically end if you become incapacitated in the future. A general or special power of attorney may be made "durable" with appropriate language. This generally eliminates the need for a court to establish a guardian and conservator for the incapacitated person. This will allow your attorney-in-fact to make decisions or manage affairs on your behalf for the duration of the incapacity. For example, in a "living will" or health care power of attorney, this authority may extend to decisions for medical purposes including decisions regarding terminating or limiting medical care in appropriate cases. You should have complete trust in who you grant such broad and powerful legal authority. Under federal law, these documents are exempt from any requirement of form, formality or recording that is required under the laws of a state. Therefore, they must be given the same legal effect as powers of attorney, living wills and wills prepared and executed in accordance with the laws of the state concerned.
Benefits of a power of attorney for your spouse
Providing a power of attorney to your spouse, parent or trusted friend can help to ensure that they can address whatever they need to on your behalf while you are away. If you are married, a power of attorney can help your spouse in the following ways:
- Accessing family finances - By providing your spouse a power of attorney, you can ensure that he or she can access bank accounts to make rent or mortgage payments and to pay other bills as necessary.
- Paying taxes/receiving tax refunds - Federal and state income tax returns must be filed every year, even if you are deployed, unless you are granted an extension. The Internal Revenue Service generally requires the signatures of both you and your spouse to file income tax returns and to access refunds. For your spouse to be able to jointly file income tax returns during your deployment without a power of attorney, you will need to complete IRS Form 2848, "Power of Attorney and Declaration of Representation."
- Receiving emergency financial assistance - Each of the branches of service offers emergency financial assistance through their respective relief organizations for service members and their families who demonstrate a financial need. If you have provided your spouse a power of attorney, he or she can request emergency financial assistance on your behalf. If you have not provided a power of attorney to him or her, you will either need to have completed a pre-authorization form through your branch's relief organization prior to your deployment or you will need to be contacted during your deployment to grant your permission. Obtaining permission through an American Red Cross message can be a long process further delaying your spouse from receiving aid. More information on pre-authorization can be found through the individual branches of service relief organizations:
- Receiving government housing - If your family is on the waiting list for government housing at the time of your deployment, you should notify the installation housing office prior to your deployment. Your spouse and children may be able to continue to move up the waiting list even while you are deployed. Typically, housing offices have a "frozen zone" near the top of the waiting list where your family will remain during your absence. If you have provided your spouse with a power of attorney and provided a copy for the installation housing office prior to your deployment, your spouse and children may be able to accept and move into government housing while you are deployed.
- Enrolling newborn children in the Defense Enrollment Eligibility Reporting System - If your spouse gives birth while you are deployed, your newborn child is automatically covered by TRICARE Prime for 120 days. During this initial coverage period, your child must be enrolled through the installation ID card center or the child will no longer be covered after the 120-day period. To be able to enroll a newborn child in TRICARE after the 120-day period while you are deployed, your spouse must have either a general or a special power of attorney.
Terminating powers of attorney
You can revoke a power of attorney at any time, as long as you are mentally competent. When drafting the original document, you may consider limiting the length of the power of attorney so that it automatically revokes upon your return from deployment. To revoke a power of attorney before its expiration, you can execute a revocation of power of attorney and give a copy to any person that might deal with the person who has the original document. You can consult to consult a legal assistance attorney to prepare a revocation document to end your power of attorney prior to its expiration date.
Installation legal assistance offices
For more assistance on establishing a power of attorney, please contact your local legal assistance attorney. You can find the contact information of the nearest legal assistance office through the MilitaryINSTALLATIONS application, under the program/service "Legal services/JAG" or through the Armed Forces Legal Assistance Legal Services Locator application.
You can also consult the following service websites regarding available services: