Elder Law

Make Your Durable Power of Attorney Work

By Harry Margolis

An essential part of any estate plan is the durable power of attorney, through which you appoint someone else to handle your financial and legal issues in the event you are unable to do so because of illness, disability or incapacity.  The problem with these documents is that not all financial institutions accept them all the time, and it's hard to predict which will and which won't ahead of time.

Why won't your bank or investment house accept your validly executed power of attorney?  Because they are worried about liability in the event:

1. The document in fact was forged.
2. You had revoked the power of attorney before its use.
3. The person you appoint exceeds the powers you gave him in the power of attorney.

In any of these cases, the financial institution may be held liable for any losses you incur.  On the other hand, it may also be held liable for losses you incur if it unreasonably refuses to honor your power of attorney.

So, what can you and your estate planning attorney do to make it more likely that your appointment of an agent will be accepted?  This question is answered by Daniel A. Wentworth, Esq., Senior Legal Counsel with Fidelity Investments in the November/December 2003 issue of the American Bar Association's Probate & Property journal.  Attorney Wentworth recommends taking the following steps:

• Grant general powers in the document so that there is no risk the agent exceeds her authority.
• Also include specific powers clearly authorizing the actions the agent is likely going to need to take.
• Don't use "springing" powers of attorney that don't go into effect until you are incapacitated or, if you do, be very clear about what triggers their effectiveness.
• If you're appointing more than one person, clearly permit them to act separately (unless you really don't want them to).
• Sign several originals so that they are available for different financial institutions to review.
• Sign a new power of attorney every few years so that there's less likelihood that it may have been revoked and there's a long-term record of your desire to appoint your particular agent.
• If available, also sign any powers of attorney form offered by the financial institutions in which you have funds.

Taking all of these steps will make it more likely that your power of attorney will be accepted when needed.

To read the Probate & Property article, go to: http://www.abanet.org/rppt/publications/magazine/2003/nd/wentworth.html.

Full post as published by Elder Law Answers on July 10, 2007 (boomark / email).