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I recently heard that a Power of Attorney means nothing is this true?

Asked by maylenestreasur  |  Jan 31, 2012

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Recently I attended an Estate Planning Conference, who had stated that a law has passed that all estates not listed with a revocable living trust have to go through probate, is this correct? In addition that no business will enforce or accept a POA is this correct?

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Jon P. Beyrer, Feb 2, 2012

Jon P. Beyrer, CFP, EA, is a personal financial adviser, specializing in comprehensive financial planning and investment portfolio management. He is a partner of Blankinship & Foster, LLC, a fee-only wealth advisory firm in Solana Beach, California. He holds a Master of Science Degree in Financial and Tax Planning.

 

A properly drafted (and signed) power attorney can be very effective for what it's meant to do: Authorize an agent to make financial decisions for the principal. POAs are typically not effective for medical decisions- hospitals and doctors are governed by privacy rules and will typically require a medical POA (also called an Advance Health Care Directive). Also, a POA that only takes effect on the principal's incapacity won't work unless the agent has proof that the principal has been declared incompetent by a court or by a doctor. And, if the principal has been declared incompetent, the POA must be Durable, meaning it continues after the principal's incapacity. Finally, the institution that you're giving the DPOA to, such as a bank or brokerage company, does not have to accept a POA if they don't like the language. So, if your relative wants to give you POA, make sure it's the right kind of POA, whether your relative wants to give you power to act now or only after being declared incompetent, and that the institutions you'd need to use it with will accept the document.

 
 

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igloo572

Give a Hug

Feb 1, 2012

So did you hear this at one of those "free" lunch or dinner seminar's........?

If so, this likely was about them selling you an "index annuity" product via a "trust" or an estate plan within their system or program. Before you do anything, please google "free dinner annuity elderly" to see what's what out there of concern with this type of product and this type of marketing to seniors.

About the POA, there seems to be a lot of chatter about POA's not being of any worth. This is kinda about the problems with & difference between a POA and a DPOA. A lot of this stems from folks downloading a free POA off the net that is not legal or valid in their state of residence. What often happens with a free POA or old POA done before the 1990's is that banks, utility companies, mortgage co, etc (anyone who you might have to deal with to change something for your parents care or property) view it as a "springing" document. In other words it only "springs" into action and viability upon certain conditions - this usually is when the person becomes unable to do for themselves and the bank or other institution wants the "springing" power to be documented. By a physician . Most doc's don't want to do the paperwork as it's kinda a legal nightmare if there is family friction later on. With a DPOA done by an attorney there is none of this type of problem.

About probate, I've been executrix twice and it is really not a big deal for most families if the elders have done all the normal legal paperwork with an attorney.
Some states have small estates probate which is very simple and easy to do.

IMHO you should have the following done:
- Durable Power of Attorney (not just POA)
- Medical Power of Attorney

- Living Will &/or Advance Directives (DNR)
- Declaration of Guardian in Event of Incapacity

- HIPAA Waiver

- Will or a Living Trust

I'm a firm believer in having an elder care attorney take care of all this. It will not be expensive as most is done by the paralegals and the forms routine for most folks. You do want to go in prepared with what the information is for the documents (e.g. the residence located at 123 ABC street, aka parcel #5678; Ann Smith, wife of John Smith, with the info on all the births, deaths & prior marriages, don't be cute and leave anyone out either) as well as valid ID for the elder. If the decisions have been already made, this should all simple, straightforward paperwork. Should take 1 - 2 hrs for intake & then 1 hr a couple of days later for the signatures to be done. The law office will keep an original set and give you one. I would suggest that you request an original set for each of the children, so that all family are all equal in paperwork. Doing this will make your life easier.

If your parent has assets, then all this should be paid from their assets. This also is important if you ever get challenged. If you pay for all, and you benefit, then other family could go to court to find it a coerced document. Good luck.

 
 

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