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Who Will Act for You if You Can't?

Giving someone power of attorney is essential — and tricky

law gavel as a pen

John Vogl

I got an email from a reader that set me thinking about durable powers of attorney. They’re essential to your future financial security but don’t always work the way you and your family hoped.

A durable power of attorney (POA) protects your future self. It names an agent to handle your financial affairs, such as bill paying and investment management, if an accident, illness or simple fatigue leaves you unable (or unwilling) to cope. When the agent needs to take charge, however, walls might go up. 

Take the reader who emailed me. She held her mother’s durable POA. When dementia descended, the mother, in her confusion, refused to allow her daughter to act. Financial institutions won’t always accept a POA if the person who granted the power objects. Result: The daughter had to ask a court to name her “conservator” of her mother’s financial assets. In these proceedings, a judge takes evidence from the disabled person’s doctor and perhaps others, such as a social worker. The agent can act only if the judge concludes that the incapacity is real.

Similarly, you might hold a health care proxy for someone with advanced Alzheimer’s disease who won’t enter a facility.  You’d have to ask a judge to name you guardian, freeing you to make medical decisions that the proxy put into your hands. Setting up a trust won’t help. Even trustees have to go to court if their assistance is refused. As you can imagine, all of this costs big money.

Ideally, the person who grants the POA will give you the reins before total dementia sets in, says attorney Hyman Darling of the law firm Bacon Wilson in Springfield, Mass. If you meet with resistance, you might propose taking over the big things, like investments or large CDs, while the grantor maintains control of a modest checking account.

Another risk is that the bank won’t accept the POA — because it references you by your nickname, for example, instead of your legal name. In this case you would need extra documents to prove your identity. Or maybe the grantor downloaded the POA from the internet and didn’t get proper signatures. POAs that are written by lawyers are most reliable, but internet POAs may work if they are properly filled in. 

Financial institutions have good reason for caution. An estimated 55 percent of elder financial abuse is committed by family members, caregivers and friends, some with POAs. But the bank manager might reject a trustworthy agent, too. If so, push it up the line. Lawyers definitely help. “We sometimes have to threaten banks,” Darling says. 

Those who grant POAs can clear the road for their agents by visiting their banks and having the agent added to their accounts. Also, check with your investment firm to see if it requires special forms.

If you have no POA and become incapacitated, your relatives will have no choice but to go to court. So please get one! In most cases, they work.

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