Power of Attorney Services

Specializing in Elder Law Powers of Attorney

Durable powers of attorneys are essential to managing the affairs of incapacitated adults. Often we are forced to file guardianship proceedings because a client has either no power of attorney or an inadequate power of attorney that does not grant all of the necessary powers. Approximately half of all states have adopted some version of the Uniform Power of Attorney Act to provide more uniformity of laws from state to state. Delaware instated its present statute on October 31, 2010.

Recently, Seattle University law professor James Brown reviewed powers of attorneys to help identify critical questions to avoid surprises and strengthen the enforceability of the documents.

A Durable Power of Attorney Should Not be a Form

A common complaint among attorneys is that certain institutions (generally financial institutions) insist clients complete the institution’s specific forms for power of attorney. These forms often lead to confusion and the revocation of carefully drafted inclusive documents with a power of attorney that may only cover bank and financial transactions. These forms may appoint different agents than the intended and original power of attorney. A financial institution’s power of attorney may include specific indemnification language in favor of the institution which is not regulated by law. Prof. Brown’s article notes that the Uniform Statute for Powers of Attorney provides the formal requirements for the creation of a durable power of attorney including acknowledgement before a notary and competent nonfamily witnesses.

Prof. Brown cautions against using “forms” for creating powers of attorneys. Many powers of attorney, unfortunately, provide statutory restrictions on gifting, which is contrary to Medicaid planning. The purpose of this restriction seems to be to avoid federal gift and estate taxes, which is rarely a consideration for most clients.

Additionally, elder law attorneys possess the training and experience necessary to draft individualized powers of attorney to provide their clients with the protection that they deserve. The confidence one gains from an adequately developed document far outweighs the simplicity of filling out a form.

Finally, there is the issue of when a power of attorney may become effective. Powers of attorneys which become effective under specific circumstances are called springing powers of attorney. A springing power of attorney is a power of attorney that takes effect after the expiration of a specified time or after the occurrence or non-occurrence of a specified event. In the experience of many, establishing whether such a power of attorney is adequate is often as cumbersome as obtaining a court guardianship, since one or two physicians must certify that the grantor of the power is incapacitated. Additionally, a financial institution may require repeated certifications whenever an agent attempts to use a springing power of attorney. For that reason, Florida, when revising its power of attorney statute in 2012, eliminated all springing powers of attorney in Florida whatsoever.

Certified Elder Law Attorney

If your bank requires a power of attorney for the transaction you are considering, do not sign a new one. Instead, provide the individualized power of attorney we created for you. It should be more than sufficient for any banking activity. And as always, if you have any questions, please contact our Certified Elder Law Attorneys at 302-651-0113.