Archives for July 2017

How Old is Your Durable Power of Attorney?

When you created and signed your General Durable Power of Attorney, you did it to make sure that a person chosen by you could take care of financial and personal matters for you if you were to become incapacitated.

However, as this 2016 New York Times article explains, when an Agent takes a power of attorney document to a financial institution, the institution might not accept the document. Instead of honoring the power of attorney, some banks and investment houses have been known to insist that the account owner or owners sign the institution’s own power of attorney form, despite Virginia law apparently to the contrary.

Durable Power of AttorneyIt’s usually easiest in such a situation just to go ahead and fill out the bank’s form. However, that’s not always possible if you or your relative has developed dementia, or there’s another emergency and time is of the essence.

Unfortunately, these are not rare occurrences. Estate planning and elder law attorneys often encounter financial institutions unwilling to honor valid powers of attorney. Even though Virginia law requires institutions to accept a durable power of attorney, and insulates them from liability when they do accept one, attorneys have seen some institutions resist. The usual reasons are because Agents’ IDs don’t exactly match the names on the powers of attorney (think marriage, divorce, or other name change – or use of a nickname instead of a “driver’s license name”), or because a power of attorney is deemed “stale” — signed too many years ago to be accepted without additional assurances under the bank’s internal rules.

And in many cases, the brokerages or banks have valid concerns. They are concerned about potential financial exploitation of their customers, particularly seniors, and are on their guard when Agents whom they have never met walk in with powers of attorney that enable them to control substantial sums of money. When they insist on using in-house forms, or obtaining updated powers of attorney, it’s usually because they’re concerned about their potential liability to the account owner.

Fixing the Problem Before It Happens

What can you do? First of all, if your (or your loved one’s) General Durable Power of Attorney is more than five years old, come in and see me to have it updated. The fresher the power of attorney, the less likely it is to be challenged. Equally important, transfer your individual, non-retirement accounts to your Living Trust, if you have one. Banks are much less reluctant to deal with Successor Trustees than they are with Agents under powers of attorney, because the rules for trusts are much more manageable, and the bank’s exposure to liability therefore is lower.

(The Durable Powers of Attorney that I am currently drafting specifically authorize Agents to complete financial institutions’ in-house power of attorney forms on behalf of the principal. This is probably going to help, but as of this writing, no client has yet reported a success or failure to me.)

As a backup, you can ask your brokerage or bank if it requires its own durable power of attorney document. If it does, take home a copy, or have the institution email me the form or a link to it online. I’ll look it over for you, warn about any problems it could raise (and indeed there might be none — but the print is likely to be small) and advise you on what to do next.

It may seem like extra work, but by preparing ahead, and reviewing and updating your powers of attorney now, you will be ready if and when you need to represent a loved one as Agent, or a loved one needs to represent you. To get started, you can call or email me right now.