Powerless Power of Attorney


Question: My father executed a Power of Attorney and named me as the Agent.  I was recently told by his bank that they would not accept my Power of Attorney, what are my options?

Answer:  A Durable Power of Attorney is an integral part of any estate plan.  A validly executed Power of Attorney will allow you, the Principal, to designate an Agent to act on your behalf and virtually step into your shoes with respect to all of your business and financial matters.  The purpose of a Durable Power of Attorney is to have one comprehensive document that will allow an agent to transact business on all accounts regardless of the financial institution. Where an individual becomes incapacitated without having these documents in place, the family may find themselves petitioning the Guardianship Court in order to have the authority to do the very same thing that a valid and comprehensive Power of Attorney can provide.

Recently we have noticed a trend at some financial institutions where they have refused to honor a validly executed Durable Power of Attorney.  They insist that an institution specific form be signed by the account owner in front of a notary.  In some cases, this may be impossible as the account owner has become incapacitated.  This could force an individual, who had the appropriate documents in place, to now be the subject of a Guardianship proceeding.  In fact, on May 6, 2016 the New York Times published an article, “Finding Out Your Power of Attorney Is Powerless, by Paula Span.

What can you do in order to ensure your agent has access to your financial accounts in the event you become incapacitated?  One good option would be to go to each one of your financial institutions and request their specific power of attorney form.  As part of your estate planning, you could fill out and sign each of the financial institution specific forms along with the Durable Power of Attorney.  Additionally you would want to make sure your agent has the contact information for the attorney that prepared the Durable Power of Attorney.  In some cases, the agent will be able to contact the drafting attorney and receive assistance or guidance in getting the financial institution to accept the Durable Power of Attorney.

Regardless of your situation, having a comprehensive Durable Power of Attorney executed is invaluable to your estate plan.  In order to make sure you or your family members are covered in the event of incapacity, you should consult an elder law specialist in your area.

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Burner Law Group, P.C.

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