Posts Tagged ‘powers of attorney’

 

A power of attorney is the most overlooked and under-loved document . . . but, oh, so important. Even then, a person with a power of attorney may not have all the fire power needed.

Also, I wrote earlier on how a power of attorney is an important way to avoid a common banking error. You can read about these make-or-break documents in less than 3 minutes right here . . . or if you want something a bit more in depth, just click on the video below and you can watch an excerpt from Elder Law University’s session on powers of attorney (the video is about 20 minutes long).

What Is A Power of Attorney?

A power of attorney (or a POA) is an instrument in which a person called a “principal” appoints a person called an “agent” or an “attorney in fact” to manage some or all of the principal’s financial affairs.

By the way, an “attorney in fact” need not be (and usually isn’t) an attorney. The word “attorney” comes from the old French Norman word “attourne” meaning “one appointed.”

Is All This Really Necessary?

Without a power of attorney, if a person becomes incapacitated many of her affairs may be unmanageable without a court-appointed guardian or conservator. This will likely involve paying an Appointed One (ok, ok . . . an attorney) to bring a conservatorship petition, court supervision of the conservator, likely payment of a bond, and add all sorts of additional pressure on the family.

It doesn’t matter a bit that the incapacitated one is married because the ability of a spouse to manage many affairs is limited.

In fact, as I have written, if a principal is concerned with managing money in case she becomes incapacitated, a power of attorney is a much better way to manage money than setting up a joint account with someone else (perhaps a child).

Broad? Or Narrow?

A POA can be very narrow. “I hereby appoint Joe to manage my checking account while I am out of the country through next month.”

A POA can be very broad. “I hereby appoint Joe to do anything and everything I could for myself until further notice.”

“Durable” confuses many. In many states a POA will become invalid after the incapacity of the principal unless the POA specifically states that the POA continues in effect after the incapacity of the principal. In any event, to use quaint terminology, a POA designed to last beyond the incapacity of the principal is said to be “durable.”

Now? Or Later?

A Principal may wish to appoint an Agent with immediate authority to act, but subject to a mutual understanding that the Agent will not do anything until needed. Thus, an “immediate” power.

On the other hand, the Principal may be a bit nervous about vesting too much power too soon in the Agent and might prefer to specify that the POA does not become effective until after the incapacity of the Principal. Thus, a “springing” POA.

My usual question to a client wanting a springing POA is: If you don’t trust the Agent NOW, how can you trust her LATER when you won’t be able to do anything about it?

Is It Christmas Yet?

By the way, unless the POA specifically allows for gifting, the Agent won’t be able to make gifts, even if the POA is otherwise broad. Gifting, by the way, isn’t referring to Christmastime, it is referring to the ability to move assets around for planning purposes . . . which could be critical.

Back to the old trust issue. Restrictions can be put on gifting. Perhaps written permission from a sibling, a trusted advisor or friend.

POAs are important. And tricky. The best approach is to have an attorney draft one for you.

Coastal Senior is a monthly periodical published in Savannah, Georgia and circulated throughout the Georgia and South Carolina low country. Bob Mason is its legal columnist.

Happy 2008. Here’s another article on New Year’s resolutions. I’m not going to ask you to lose weight, eat less, drink less, read more, or exercise more. I am going to ask you to resolve to do three things (of a legal variety) that will do nothing at all for you . . . but make quite a difference for your family. Just three.

Resolution Number One. I WILL do a Will (unless I already have one less than 5 years old).

I am amazed by the number of people who sit before me and sheepishly admit they have no will, or have wills written when the Gipper was president.

The biggest excuse seems to be either “I just haven’t gotten ‘roun to it” or “I didn’t think I really needed one”. To the first I say, borrowing a Nike line, “Just do it” . . . I can’t do much more than that to a procrastinator other than try to scare him (not to death . . . remember, he doesn’t have a will).

Wills are important for a number of reasons. Avoiding intestacy (dying without a will) is usually a must. Most married couples want to benefit each other upon the death of the first. That won’t happen under intestacy because a share (at least half or more) will go directly to children. If there are no children or no surviving spouse, the state intestacy rules will determine who among the heirs “gets what and how much”.

Also, state statute may have ideas different than yours as to who should wind up your affairs. Further, by foregoing a will you might bypass many planning opportunities that could insure the protection of your property after your death.

There are plenty of wills available on the internet for just $100 or so. I’ve even seen some guy on TV advertising software for $69. Those options are better than nothing, I guess, but they are not worth more than what you paid for them.

I suggest you pay (yes, pay) an attorney to evaluate your situation and discuss your options. She may have some great ideas you missed surfin’ the web.

Finally, prepare a will if you love your family. I haven’t looked at my records, but I would not be surprised if I have earned more fees slugging it out between warring and hateful siblings and first and second families than I have earned writing wills. To the extent you leave a well-thought-out plan you may avoid The Family Feud.

Resolution Number Two. I will insure that I have an effective Power of Attorney.

Powers of attorney are incredibly important and often overlooked. A power of attorney involves a principal (you) appointing someone else as agent or attorney-in-fact (maybe a spouse or an adult child) to manage the principal’s affairs, especially if the principal becomes incapacitated.

Without a power of attorney, often the only solution is a guardianship or a conservatorship. Those are expensive and intrusive . . . and involve submitting yourself and your affairs to the supervision of a probate court.

Properly drafted powers of attorney are also important to enable gifting. By “gifting” I am not talking about Christmastime, I am talking about the ability to convey and re-title assets after your incapacity if that should make sense. Transferring assets often makes tremendous sense after incapacity.

Even a power of attorney that says “I give my agent power to do anything and everything I could for myself” does not authorize gifting. That is because agents under a power of attorney are called fiduciaries and are subject to state fiduciary law. Fiduciaries include trustees, executors and, yes, agents under a power of attorney. Fiduciary law says that unless the written authorization specifically and clearly directs otherwise, a fiduciary may not squander, transfer to others or transfer to herself the principal’s assets. That certainly covers gifting.

Of course gifting powers can be made subject to special restrictions. For example, “My agent must secure the written permission of at least one sibling before making any transfer”.

Resolution Number Three. I will execute advance health care directives and discuss my medical treatment preferences with my family.

I wrote here last summer that Mom and Dad have a harder time talking to the kids about end-of-life medical preferences than they did forty years earlier talking to the same kids about . . . uh . . . you-know-what.

If you value your preferences and you love your family, spell them out in writing and have The Talk. It will avoid much confusion, heart ache and recrimination later on.

Have a great New Year!