Power of Attorney - A Powerful Legal Instrument That Can Be Abused
By Don Drake, Connelly Law Offices, Ltd.
"A power of attorney (POA) is a legal document that is often misunderstood, but it can be an incredibly powerful tool," said RJ Connelly III, a professional fiduciary and certified elder law attorney. "The POA gives a designated individual, known as the agent or attorney-in-fact, the ability to make important decisions on behalf of another person, known as the principal. These decisions include managing the principal's finances, investments, property, or medical care."
"The agent's authority can be broad or limited, depending on the principal's wishes and the terms of the POA," continued Attorney Connelly. "It's important to understand the scope of a POA and choose an agent who is trustworthy and capable of acting in the principal's best interests. With a properly executed POA, an agent can provide valuable assistance and support to a principal who may be unable to make important decisions on their own."
How a POA Works
This document is crucial for anyone who wants to ensure their affairs are taken care of in such instances, and it is essential to choose an agent who is trustworthy and competent.
There are several reasons why a power of attorney may come to an end, including revocation by the principal, the death of the principal, a court invalidating it, or if the agent can no longer carry out the responsibilities outlined in the document. If a married couple has a power of attorney, the authorization may be invalidated if the couple divorces.
There are several types of powers of attorney, including durable and springing POAs. Durable POAs remain in effect even if the principal becomes incapacitated while springing POAs only come into effect when certain conditions are met. Additionally, the power of attorney may be restricted to medical matters, thereby enabling the agent to act on behalf of an incapacitated individual in medical situations.
Choosing a Power of Attorney
This document grants immense ownership authority and responsibility to a named individual, referred to as the agent. As stated earlier, it is a powerful document and should be treated with the utmost care and consideration. A medical POA, in particular, can be a matter of life and death. Additionally, a durable POA can have serious financial consequences if mishandled or abused.
"It is critical to name a person who is both trustworthy and capable of serving as your agent," said Attorney Connelly. "The agent acts with the same legal authority as you would have, which means any mistakes made by your agent may be difficult to correct."
Depending on the extent of the powers granted, there may be a danger of self-dealing. For instance, an agent may have access to your bank accounts, the power to make gifts and transfer your funds, and the ability to sell your property. So, you can see the importance of choosing an agent who is competent and trustworthy.
"The agent can be any competent adult, including a professional such as an attorney, accountant, professional fiduciary, or banker," stated Attorney Connelly. "Alternatively, the agent may also be a family member such as a spouse, adult child, or another relative. In some cases, naming a family member as your agent can be beneficial as it saves the fees that a professional would charge. Additionally, it may keep confidential information about your finances and other private matters in the family, but in some cases, there are drawbacks to this."
Naming Children as Power of Attorney
It is common for parents to create power of attorney (POA) documents naming their adult children to serve as agents. The reason for this is that, compared to naming a spouse as the agent, the relative youth of the child can be an advantage when the purpose of the POA is to relieve an aging parent of the burden of managing the details of financial and investment affairs or provide management for an aging parent’s affairs should the parent become incapacitated.
In cases where the agent is a spouse who is near the same age as the person creating the POA, they may come to suffer the same disabilities that led the POA’s creator to establish it, which defeats its purpose. However, when the child is honest, capable, and respects the parent’s wishes, they can be the best choice for a POA.
When there is more than one child, parents may struggle with the decision of who to select for the role of the agent. This is because the agent named under your POA acts with your authority, so costly financial mistakes resulting from carelessness or lack of financial understanding may be impossible to fix. The same is true of acts that create intra-family conflict by favoring some members over others.
Fortunately, children have different characters, skills, and circumstances, and the powers given to them can avert these dangers. This is why it is possible to have multiple POAs naming separate agents and customize them for each child’s skill set, temperament, and ability to act on your behalf. By doing so, you can ensure that your affairs are managed according to your wishes and that your assets are protected.
General Risks in Naming a Power of Attorney
Once again, when you grant someone a power of attorney (POA), you are giving them the legal authority to act on your behalf and make decisions that may affect your finances, property, and even your healthcare. While it can be a convenient way to ensure that your affairs are managed in case of incapacitation or when you are unavailable, there are also risks involved.
"One risk is the possibility of theft or self-dealing by the agent, who may abuse their power and use your assets for their benefit," said Attorney Connelly. "To minimize this risk, there are steps that you can take when creating a POA. For instance, you can limit the scope of the agent's authority, specify the tasks they can perform, and require them to keep detailed records of their actions. You can also have your POA require your agent to report all actions periodically to an outside party, such as the family’s accountant or attorney. In other words, trust but verify. An experienced and knowledgeable attorney can help draft your POA to include these safeguards under your state’s laws."
The power of attorney (POA) is an extraordinarily powerful legal tool. The POA gives a designated individual, known as the agent or attorney-in-fact, the ability to make important decisions on behalf of another person, known as the principal. When choosing an agent, it's important not to name a person simply because they are your child or a family member. While they may be trustworthy and capable of accomplishing your wishes, you should ensure they have the necessary skills, knowledge, and temperament to act in your best interests.
"An experienced and knowledgeable attorney can help you evaluate potential agents and draft your POA accordingly," said Attorney RJ Connelly III. "By taking these steps, you can ensure that your POA provides both convenience and protection and that your affairs are managed according to your wishes."
Please note that the information provided in this blog is not intended and should not be construed as legal, financial, or medical advice. The content, materials, and information presented in this blog are solely for general informational purposes and may not be the most up-to-date information available regarding legal, financial, or medical matters. This blog may also contain links to other third-party websites that are included for the convenience of the reader or user. Please note that Connelly Law Offices, Ltd. does not necessarily recommend or endorse the contents of such third-party sites. If you have any particular legal matters, financial concerns, or medical issues, we strongly advise that you consult your attorney, professional fiduciary advisor, or medical provider for advice.