General POA and Special POA

The General POA delegates a class of authority. The Special POA delegates a defined act. The distinction is categorical, not gradient. The choice between them is a choice between two functions, made on the facts of what the attorney is being asked to do.

Purpose

The purpose of a General POA is to grant continuing authority. The principal needs the at-torney to act across matters that are not yet identified or that may arise unpredictably. The purpose of a Special POA is to perform a defined act. The principal has identified the act, the subject matter, and the counterparty, and authorises the attorney to perform that act and no other.

The instruments are not interchangeable. A Special POA cannot be used as a General POA by adding clauses, and a General POA cannot be used as a Special POA by directing the attorney’s attention to a particular matter.

Scope and institutional reading

The scope of a General POA is determined by the drafting and runs across categories. The scope of a Special POA is determined by the named act and stops at its boundary. The Special POA may include incidental authority required to perform the named act, but the incidental authority is attached to the named act, not free-standing.

A Special POA is accepted on its face for the act it names, provided the formalities of exe-cution and attestation are satisfied. A General POA is read against the act the attorney is attempting to perform: the institution looks for express authority and, finding only gener-al authority, makes a conservative assessment. This is the practical reason that Special POAs perform better at the institutional counter than General POAs for known acts. The institution does not need to interpret a Special POA; it needs only to confirm it.

Lifespan

A General POA, unless drafted to expire, runs until formally revoked, until completed by exhaustion of purpose, or until terminated by operation of law. It is typically open-ended in design. A Special POA terminates when the named act is performed; completion of the act extinguishes the authority.

The selection principle

Where the act is known in advance, the Special POA is the appropriate instrument. Where the principal needs continuing authority across matters not yet identified, the General POA is the appropriate instrument. Where the principal knows of one defined act and also needs continuing authority for other matters, two instruments are appropriate rather than one. Combining the functions in a single document produces an instrument that institutions read with caution and that achieves the worst of both purposes.