I GOT THIS OFF THE INTERNET AND IT WAS FREE!
People come into my office from time to time to have me review a general durable power of attorney they printed off from Internet or photocopied from one of those help yourself publications. It was only one page and it was free. All they had to do is fill in the blanks. And I have to ask myself, if it was such a good deal then why my being paid to review it?
I can’t stress enough why it is so important to have a comprehensive general durable power of attorney for financial matters. If nothing else, have it in place to avoid having to go to court for guardianship should one become incapacitated. But a one page fill in the blank document isn’t going to protect you for it is incomplete. Here are topics which I think the document should cover.
Who are the agents going to be? Who do you really trust to make financial decisions on your behalf should you become incapacitated? What if your initial agent cannot serve for some reason. Who will succeed that person?
When do you want the power of attorney to take effect? Upon execution or upon the receipt of a letter from your physician stating that you are indeed incapacitated and can no longer make decisions on your own behalf? With the latter option, it sometimes takes time to get that letter.
Make sure your agent has the ability to buy and sell real and/or personal property. And don’t forget rental property as well.
The agent should have the ability to access bank accounts, investment accounts, securities and your safety deposit box.
I have had clients who have retired and within a couple years are running their own business. One client of mine now runs a one-man machine shop in his garage. If something happens to him then his agent needs to step in and take over his interest in the business.
And don’t forget partnerships. Again, I have had clients who have retired and within a couple years were looking to buy a business. One of my clients entered into a partnership with another person to purchase a Midas muffler franchise. If something happens to him then his agent needs to step in and take over his interest in the partnership.
If someone owes you money your agent should have the ability to collect on your behalf. Your agent should have the ability to file a bankruptcy on your behalf should that be necessary.
Not only should your agent has the ability to make advance funeral arrangements but deal with the disposition of your body. I’ve had several funeral homes request that this provision be put in my documents.
The document should allow the agent to enter into certain types of trust agreements; especially, if your agent is contemplating applying for Medicaid financial assistance to pay for long-term care. If not, then the conservatorship that was to avoided may have to be filed in order to ask the probate judge for permission to do this type of planning.
Your agent should have the ability to deal with the qualified plan administrators, life insurance companies, annuity companies, governmental agencies including but not limited to Social Security, Medicaid and Medicare. And don’t forget any and all taxing authorities. He may have to file income tax returns or protest a tax appraisal on your home.
Should your agent be reimbursed for his time, trouble and expenses? It does cost to take someone to Kansas City to see a specialist.
What about caregiver agreements? Instead of being placed in a long-term care facility, perhaps solution is to have a home healthcare agency or someone else to come into the home and provide care. I don’t know about you but given the choice I would want to stay in my home as long as possible.
You could authorize the use of credit cards. For example, a card in the name of John Doe and/or Jane Doe. agents for Mary Doe. So instead of writing six or eight checks a month, you could write one check to the credit card company and have a nice printout of what was spent on your behalf. Do you want an annual accounting provided to family members as to how your finances are being handled.
I was think it’s important that the agent be able to appoint a special or ancillary agent. For example, say your agent is out of town and some issue arises and he can’t be back to be Johnny on the spot. He can appoint a special agent to deal with the situation until he gets back.
There are limitations on an agent’s powers. No attempt can be made to rewrite your will or living will. Furthermore, you can set additional limitations on your agent’s powers as you see fit.
The State of Kansas now requires that your initial agent sign off accepting and agreeing to act on your behalf. This eliminates the problem where there is a knock on the door one night and younger brother tells older brother that their dad had a stroke and he appointed the older brother to be as agent who replies “I didn’t sign on for this.”
I think it’s obvious that a general durable power of attorney has to have language that anticipates potential problems and whether or not the agent will have the ability to deal with them in order to protect his principal. If you’re happy with what you printed off the Internet, then so be it. But those are documents I would never draft for myself nor my clients.
“There is no cure for the common birthday”