Lasting Power of Attorney – How to Protect Your Interests Going Forward
Who will manage your financial and personal matters if you are no longer able to do so? A lasting power of attorney allows you to decide who will handle your affairs, unlike guardianship, where the County Governor appoints a guardian. Here, we explain what a lasting power of attorney is, how to establish one, and key points to be aware of.
What Is a Lasting Power of Attorney?
A lasting power of attorney is a legal document in which you grant one or several people (attorneys-in-fact) the authority to act on your behalf if you are no longer able to manage your own affairs, for example, due to dementia or serious illness. It can be either permanent or temporary (e.g., in case of an accident or serious illness).
Difference Between a Lasting Power of Attorney and Guardianship:
- Lasting Power of Attorney: You choose who will represent you and what the authority should cover.
- Guardianship: The County Governor appoints a guardian if you do not have a lasting power of attorney.
A lasting power of attorney gives you greater predictability and the ability to tailor solutions to your specific needs and wishes. This contrasts with guardianship, where a public guardian is appointed who often has responsibility for several people and therefore rarely can provide the same level of personal attention.
It is important to understand that a lasting power of attorney is not the same as a will. You cannot decide on the distribution of your estate or make other testamentary dispositions in a lasting power of attorney. If you want to distribute your inheritance, this must be done in a will.
Read More: How to write a valid will in Norway
For a lasting power of attorney to be valid, certain formal requirements must be met:
- You must be over 18 years old and understand what you are doing (mentally competent).
- The power of attorney must be in writing.
- Two witnesses must be present simultaneously when you sign. The witnesses must:
- Be over 18 years old
- Not be the attorney-in-fact, spouse, cohabitant, or close relative of you or the attorney-in-fact
- The witnesses must sign to confirm that you have established the power of attorney voluntarily and of your own free will.
- Who will be the attorney-in-fact
- Which areas the authority covers (financial, personal, or both)
- Which actions and decisions the attorney-in-fact is authorized to make on your behalf
- Any limitations or specific wishes
Can I use a Template?
A template can serve as a starting point, but it is important to tailor the power of attorney to your needs. Generic powers of attorney may be rejected by banks or public authorities. In such cases, the County Governor may have to appoint a temporary guardian (substitute guardian) for the specific matter. Therefore, be cautious with standard templates.
The power of attorney applies only when you are no longer able to manage your own affairs. This must be documented with a medical certificate. Your attorney-in-fact has the legal right to obtain this and present the power of attorney.
Many banks and similar institutions require that the County Governor certify the power of attorney, which can only be done after it takes effect. Note: the County Governor only accepts original lasting powers of attorney.
When creating a lasting power of attorney, it is important to be aware of possible pitfalls:
- Risk of Misuse: The attorney-in-fact may have very broad authority—choose someone you trust.
- Conflicts: Other heirs or relatives may disagree with the attorney-in-fact. We recommend being transparent with your family about who you choose and the content of the power of attorney.
- Insufficient or Unclear Power of Attorney: If the document is unclear or incomplete, there may be doubt about what the attorney-in-fact is authorized to do.
- Attorney-in-Fact Withdraws: If the attorney-in-fact cannot or does not want to take on the role, the power of attorney should state who the secondary attorney-in-fact is.
If you own a business or holding company, you should ensure that your interests in the company are protected. You can establish a separate lasting power of attorney for this, or let the same attorney-in-fact handle both personal and corporate matters. What falls under the attorney-in-fact’s responsibilities will depend on ongoing operations and/or investment strategy and must be customized for each case.
Read More: Brækhus’ Expertise in Family Law and Inheritance
Need Help? Contact Us
A lasting power of attorney ensures that your interests are protected if you cannot make your own decisions. Carefully consider whom you give authority to and what it should cover. Contact us for advice and assistance.
