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Powers of attorney are important, but what happens if your agent goes awry?

by Legacy Plan
October 13, 2023

Trust is fundamental to human interactions, and nowhere is this more evident than in the realm of legal arrangements. Powers of attorney stand as a testament to this trust, acting as crucial instruments in safeguarding our interests when unforeseen circumstances prevent us from making decisions for ourselves. These powerful documents entrust an individual, known as the agent, with the authority to manage another's affairs — be it financial, medical or both. But as with all potent tools, the power of attorney comes with its share of risks and responsibilities.

What is a power of attorney?

A power of attorney is a legal document that grants an individual, known as the agent or attorney-in-fact, the authority to make decisions and take actions on behalf of another person, known as the principal. This legal arrangement holds significant benefits for individuals who want to ensure their wishes are carried out in various aspects of their lives. One primary advantage is that it allows for continuity and control in situations where the principal may be unable to make decisions due to incapacitation or other circumstances.

In terms of estate planning, a power of attorney is an essential tool that enables individuals to designate someone they trust to manage their financial affairs should they become incapacitated. By appointing an agent through a durable power of attorney, which remains effective even if the principal becomes unable to make decisions, one can safeguard their interests and ensure uninterrupted management of their finances.

This can include paying bills, managing investments, buying or selling property and handling other financial transactions that are necessary for maintaining stability. Moreover, powers of attorney extend beyond just financial matters and encompass medical decision-making as well.

Through a health care power of attorney or medical power of attorney (which might also be referred to as a health care proxy or advance directive), individuals can nominate someone they trust to make medical choices on their behalf if they become incapable of doing so themselves. In conjunction with a living will or health care directive outlining specific instructions for end-of-life care or life-sustaining treatment preferences, this provides peace of mind by ensuring one's wishes are respected during times when they cannot actively participate in decision-making due to physical or mental incapacity.

By having powers of attorney in place – both financial and medical – individuals gain the comfort and security knowing that someone they trust will be able to step in and act on their behalf should the need arise. This arrangement helps avoid potential conflicts among family members over decision-making authority during times when emotions may already be running high due to difficult circumstances.

Additionally, it allows the principal to select someone who they believe has the necessary skills, knowledge and integrity to handle their affairs effectively. Ultimately, a power of attorney serves as a vital component of a comprehensive estate plan, offering both practical and emotional reassurance to individuals and their loved ones in times of incapacity or uncertainty.

What is the difference between a durable and non-durable power of attorney?

It is important to understand the distinction between two types of powers of attorney: durable and non-durable. A non-durable power of attorney comes into effect immediately upon signing but is terminated once you become incapacitated. It may be useful for a specific transaction or temporary absence from the country.

For example, if you are traveling abroad and need someone to handle your financial affairs during your absence, a non-durable power of attorney can grant them authority for a specified period. However, it is important to note that this type becomes ineffective if you lose mental capacity due to illness or injury.

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On the other hand, a durable power of attorney remains valid even if you become incapacitated. This type provides continuity and allows your chosen agent to continue managing your affairs when you are no longer able to do so yourself.

It can cover both financial matters and health care decisions unless stated otherwise in an advance directive or living will. When choosing between these two options, it is essential to consider the purpose and duration for which you need someone to act on your behalf.

If you want ongoing management of your finances or health care decisions as part of long-term estate planning, opting for a durable power of attorney would be more appropriate. Conversely, if you require temporary assistance or have specific transactions in mind that do not extend beyond your capacity limitation (such as signing documents while traveling), a non-durable power may suffice.

Understanding the difference between durable and non-durable powers of attorney helps ensure that you choose the appropriate legal instrument based on your specific needs and circumstances. Consulting with an experienced professional in estate planning or elder law can provide invaluable guidance during this decision-making process and ensure that your wishes are accurately reflected in the document.

Who should be my agent under a power of attorney?

When appointing an agent under a power of attorney, it is crucial to choose someone who is trustworthy, responsible and capable of handling the responsibilities that come with the role. One key factor to consider when selecting an agent is their level of trustworthiness. Since they will be making decisions regarding your finances and potentially even your health care, it is imperative that you choose someone who has consistently demonstrated honesty and integrity.

Consider individuals who are responsible with their own affairs and have a track record of making wise financial decisions. Moreover, ensure that your chosen agent understands the importance of acting solely in your best interests and has a clear understanding of their fiduciary duties.

In addition to trustworthiness, it is also essential to assess the capabilities and availability of potential agents. A person appointed as an agent should possess the necessary skills to handle financial matters such as managing bank accounts, paying bills, filing taxes or making investment decisions if required.

Similarly, if you want your agent to also have authority over medical decisions through a separate document known as a medical power of attorney or health care proxy, it is crucial that they understand your wishes regarding end-of-life care or other medical interventions outlined in documents like living wills or advance directives. Furthermore, consider whether potential agents have sufficient time available to dedicate themselves fully to fulfilling their responsibilities under the power of attorney agreement.

Managing someone else's finances or health care requires time and effort; therefore individuals with demanding professional commitments or personal obligations might not be suitable choices for this role. Choosing an appropriate person as an agent under a power of attorney is not a decision that should be taken lightly.

What should I do if I think my power of attorney is dishonest?

If you suspect that your power of attorney is being dishonest, it is crucial to take immediate action to protect your interests and assets. Dishonesty from a person in this position can have serious consequences for both your finances and your overall well-being.

The first step in dealing with a potentially dishonest power of attorney is to gather evidence. Keep detailed records of any suspicious behavior, such as financial transactions that seem unusual or unauthorized changes made to important documents.

It is also advisable to consult with professionals such as attorneys or accountants who can help review your situation and provide guidance on how best to proceed. If you believe that the actions of your power of attorney constitute criminal behavior, it is essential to report the matter immediately.

One option is to contact law enforcement authorities and provide them with all the relevant evidence you have gathered. They may conduct an investigation and determine whether criminal charges should be pursued.

In addition, it may be necessary to revoke the power of attorney if you suspect dishonesty. To do this, consult an attorney experienced in estate planning and obtain their guidance on the specific steps required based on the laws in your jurisdiction.

Revoking a power of attorney typically involves drafting a formal document stating that you are revoking all previously granted powers and delivering it to the individual in question, along with any relevant financial institutions or health care providers who were previously informed about their authority. If you suspect dishonesty from your power of attorney, swift action is essential.

Gather evidence, seek professional advice from attorneys or accountants, report any potential criminal activity promptly and consider revoking the power of attorney if necessary. Protecting yourself financially and ensuring honest representation are crucial elements when dealing with such matters as they directly impact both your present circumstances and future well-being

How do you revoke a power of attorney?

When circumstances change or concerns arise, it is crucial to understand the process of revoking a power of attorney.

Revocation allows an individual to regain control over their affairs and protect themselves from any potential misuse or abuse by their agent. Revoking a power of attorney involves several steps, and it is important to approach the matter with care and follow proper legal procedures.

The first step in revoking a power of attorney is to formally communicate your intention to revoke it. This can be done by drafting a revocation document clearly stating your decision to terminate the existing power of attorney.

The document should include your name, date, explicit statement of revocation and the names of all parties involved in the original power of attorney agreement. It is essential to ensure that this document is properly signed and notarized for its legal validity.

After drafting the revocation document, it is necessary to notify all relevant parties about the revocation. This includes both your agent and any third parties who may have relied on the original power of attorney, such as financial institutions or health care providers.

Providing them with a copy of the revocation document will serve as official notice that the previous authority granted under the power of attorney has been terminated. In addition to notifying involved parties, it is advisable to consult with an attorney specializing in estate planning or elder law to ensure compliance with local laws and regulations governing powers of attorney.

They can guide you through any additional steps or specific requirements that may apply based on your jurisdiction and individual circumstances.

Who oversees a power of attorney if you can't?

When you grant a power of attorney to someone, you're entrusting them with significant authority over some aspect of your life, whether that's making financial decisions, medical choices, or both. Given the significant responsibilities involved, a natural question arises: Who oversees this agent to ensure they're acting in your best interests, especially if you're incapacitated?

In many cases, family members and close friends can act as informal monitors of the agent's actions. Their proximity to the principal (the person granting the power) often places them in a position to notice any irregularities or actions that seem out of character with the principal's known wishes.

If there's suspicion or evidence that the agent is abusing their power or not acting in the best interests of the principal, concerned parties can petition the court for a review. If the court determines there's misuse or abuse, it can revoke the power of attorney and potentially appoint a guardian or conservator.

Banks and other financial institutions often have protocols in place to flag unusual or suspicious transactions. If they notice something amiss, they might freeze the account and require the agent to provide additional justification or documentation for the transactions in question.

In the case of medical or health care powers of attorney, doctors and health care providers can also serve as checks. If they believe that the agent's decisions are not in line with the patient's best interests or previously expressed wishes, they may seek further clarification or legal guidance.

If the power of attorney involves ongoing tasks, such as managing investments or other financial activities, periodic reviews by a third party like an accountant or another attorney can be set up. These professionals can assess the actions of the agent and ensure compliance with the principal's best interests.

Conclusion

Powers of attorney play a crucial role in our lives, granting individuals the authority to manage our affairs and make decisions on our behalf. While they offer numerous benefits, it is important to be aware of the potential risks and pitfalls that may arise.

By understanding the differences between durable and non-durable powers of attorney, carefully selecting a trustworthy and capable agent, monitoring their actions closely, and being prepared to take action in case of suspected dishonesty or abuse, we can better protect ourselves and our assets. When it comes to revoking a power of attorney, it is essential to follow the proper legal procedures to ensure its validity.

Consult with an experienced attorney who specializes in estate planning or elder law for guidance on this matter. By revoking a power of attorney timely and correctly, you regain control over your affairs and can appoint a new agent if necessary.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at legacyassuranceplan.com.

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