Estate Planning Tips – Power of Attorney Pitfalls

Powers of attorney – the legal document you sign giving another (like a trusted child) the right to act on your behalf as it they were you – are not the magic bullets many people think they are. For one thing, POA’s are extremely powerful documents, and the holder (called the “attorney-in-fact”), can write checks to themselves, sell your house, indebt you to the hilt, and sign for pretty much anything you can. Because of this potential for abuse – and elder financial abuse (read fraud and theft) is a nearly $3 billion dollar a year problem – and too much of it is caused by trusted children. Because of this, many banks and brokerages are very leery of honoring POA’s, even legitimate ones! They may insist on their own form (and refuse the one you paid your lawyer for), claim yours is too old to be accepted, or find other ways to stymie you. This is both to protect their customers, and to control their own liability. This happens even in states with laws requiring institutions to honor POA’s! If you fall into this common pitfall, your family will have little choice but to hire a lawyer to sue or otherwise try to compel the institution to accept the POA. In Florida, another concern is the fact that “springing” POA’s – these are not effective until a triggering event occurs, like your doctor stating that you are no longer capable of managing your own affairs – are no longer allowed. For all of these reasons, we feel that living trusts are far more effective instruments for handling the needs many people look to POA’s for. We think trusts are safer, universally accepted by institutions, and much more versatile than POA’s. Note the above pertains to general POA’s, the kind intended to let the holder do anything you can. Special (or limited) POA’s have much more restricted uses, like letting a spouse make medical decisions if you can’t, or letting Camarda manage your investments at an independent custodian. These are quite handy, common, and useful as supplements to living trust or other planning. Let us know if you want more information on this or other aspects of estate planning – Jeff.

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