Downs Law Firm, P.C.

using a power of attorney

So, You Need to Serve in Power of Attorney – Now What?

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I have appointed my oldest son as agent using a durable power of attorney form I got on the Internet. I want to be sure he understands his responsibilities if he has to manage my money and pay my bills when I become ill.

Serving as a durable power of attorney, known as the “Attorney-in-Fact,” can be a minefield, as you must follow the statutory requirements, must delegate proper authority, must consider the timing of when the agent may act, and must address a host of other issues, warns My San Antonio in the article “Guide to managing someone else’s money.”

A durable power of attorney document can be so far-reaching that using a form downloaded from the Internet is asking for major trouble. It can’t be changed when it’s needed.

Start by speaking with an experienced estate planning attorney to provide proper advice and draft a legally valid document that is appropriate for your situation.

Once a proper durable power of attorney has been drafted, talk with the agent you have selected and with the successor agents about their roles and responsibilities. For instance:

When will the agent’s power commence? Depending on the document, it may start immediately, or it may not become active until the person becomes incapacitated.

If the power is postponed, how will the agent prove that the person has become incapacitated? Will he or she need to go to court?

What is the extent of the agent’s authority? This is very important. Do you want the agent to be able to talk with the IRS about your taxes? With your investment advisor? Will the agent have the power to make gifts on your behalf, and if so, to what extent? May the agent set up a trust for your benefit? Can the agent change beneficiary designations? What about caring for your pets? Can they talk with your lawyer or accountant?

When does the agent’s authority end? Unless the document sets an earlier date, it ends when you revoke it, when you die, when a court appoints a guardian for you, or, if your agent is your spouse, when you divorce. IT DOES END AT DEATH, once the agent knows that the principal has died.

What does the agent need to report to you? What are your expectations for the agent’s role? Do you want immediate assistance from the agent, or will you continue to sign documents for yourself?

Does the agent know how to avoid personal exposure? If the agent signs a contract for you by signing his or her own name, that contract may be performed by the agent. Legally, that means that the cost of the services provided could be taken out of the agent’s wallet. Does the agent understand how to sign a contract to avoid liability?

All of these questions need to be addressed long before any power of attorney papers are signed. Both you and the agent need to understand the role of a power of attorney. An experienced estate planning attorney will be able to explore all the issues inherent in a durable power of attorney and make sure that it is the correct document.

Reference: My San Antonio Life (Aug. 26, 2019) “Guide to managing someone else’s money”