Choose Wisely and Protect Yourself When Naming a Power of Attorney
Deciding who to name as your power of attorney, or “agent” is not an easy decision. However, it is a necessary appointment, says this article “Ways to protect yourself when appointing a power of attorney” from The Mercury. Disaster and disability strike without advance notice, so it’s important to make this decision while you are well and can think it through.
If you don’t have a power of attorney in place and the unexpected occurs, the only way for your family to obtain legal authority to act on your behalf is through an “interdiction” procedure. Even when not contested, interdiction is expensive, time consuming and can limit personal freedom. Not every court will award interdiction to a family member, so the end result could be a stranger taking control of your decisions and property.
Having a power of attorney is a far better alternative, but there are seniors who are concerned about the power of a POA and how it might be abused. Here are some tips to keep you in control of your life even with a POA:
Choose wisely when you are well. Choose your agent (called a “mandatary” under Louisiana law) when you are of sound mind and body. A common “test” is the checkbook test: could you, right now, hand this person your checkbook without a second thought? Do you believe this person would act responsibly, in your own best interest, follow through in paying bills, ask for help in areas they may not understand, record transactions and be scrupulously honest? If you hesitate to give them your checkbook today, you aren’t likely to trust them to run your life in the future.
Many people choose an agent based on whether the person is the oldest child or if there would be hurt feelings if the person was named. These are not good reasons. A person who has problems managing money, for whatever reason, is not a good candidate. Their own stress might make access to your funds too great to resist.
Name a secondary Power of Attorney. There should always be a back-up person named, if the person you name is not able to serve. The same goes for trustees and beneficiaries. Discuss these alternatives with your estate planning attorney to ensure the attorney knows the identities of the primary and secondary choices.
Have a Power of Attorney customized to your personal needs. Not all Powers of Attorney are the same, and one that is great for a friend may be a disaster for you. Limited powers, unlimited powers, powers to gift or powers only for a specific task or period of time are all options when creating a Power of Attorney. You may have a business to run or a partnership to dissolve. Gifting might be permitted to limit estate taxes, if that is your wish. In the context of estate and gift tax planning, limited gifting generally means $15,000 per person per year, although your estate planning attorney (who should understand federal estate and gift taxes) can provide guidance on how to best structure gifting for you. If you own life insurance policies, you may want to permit your agent to cash in insurance policies but not allow the agent to change the named beneficiaries.
Two agents or one agent? Not all banks or investment companies will accept two agents. If they do, will the two people you select be able to work together? If not, naming two could create a financial and legal firestorm.
Financial Power of Attorney and Health Care Power of Attorney can be two separate roles. One person might be terrific with managing money, while another could be better at understanding and managing healthcare providers. For example, many clients name their daugter who is a nurse, their Health-Care Power of Attorney, and they name their son who is the businessman, the Financial (General) Power of Attorney. Naming different people for each task will allow both to participate in caring for you and draw on their unique skillsets.
Fire when necessary. You always have the right to remove someone from their role as your agent. Your attorney will know how to do this properly to protect you and other agents.
To learn more about Powers of Attorney, check out these articles: What Should I Know about Powers of Attorney? and Appointed Power of Attorney? and Should You Get Medical Power of Attorney? and What Is a Power of Attorney?
Reference: The Mercury (Aug. 3, 2021) “Ways to protect yourself when appointing a power of attorney”