How Effective is Your Power of Attorney?

Many of our elder law clients come in having already executed a power of attorney. However, in most cases, the document presented does not grant the agent the client believes it does. If the client still has capacity, he or she can execute a new, more expansive, power of attorney. If the client is already incapacitated, then often the agent has very limited options. Here are some things of which you should be aware.

First, it is important that your power of attorney be a "durable power of attorney". That means that your agent will still have the authority to act if you become incapacitated. Since most people execute a power of attorney specifically in case of incapacity, they are very surprised to hear that their document will actually not serve that purpose.

Secondly, it is vital that your power of attorney explicitly grant your agent each power that you wish him or her to have. For example, does your document allow the agent to write checks from your bank account but not open a new account? Does your power of attorney allow your agent to create and fund trusts to protect your assets? Most do not. Simply stating that you grant your agent "all powers under the law" has very little effect. Unless the power is expressly stated, most likely, it is not authorized under your power of attorney.

Finally, does your power of attorney specifically waive the requirement that your agent provide accounting and inventories to the clerk of court? In North Carolina, if your power of attorney does not expressly waive that requirement, your agent will be required to complete regular accountings and work with the clerk of court in handling your financial affairs if you become incapacitated.

If you are taking the step of executing a power of attorney to make sure someone can handle your financial affairs when necessary, ensure that your document will actually serve that purpose.

Kelli Y Allen Immigration & Elder law prepares expanded durable powers of attorneys, helps seniors plan for long-term care by protecting assets, and can assist with most of your elder law needs. Contact us for a complimentary meet-and-greet to make sure you are properly protected.