- Personal Finance
POWER OF ATTORNEY: YES OR NO
DO YOU REALLY UNDERSTAND?
There are times when a Power of Attorney is needed and it becomes a useful tool in order for married people or business partners or people in a trustworthy situation to use to accomplish agreements documented between signers, even when one is absent.
However, it can be used by someone who does not have your best intentions in mind much to your harm, and can do it behind your back. Sure, they are held responsible for their actions, but only if you catch them. It is best to fully understand what you are signing and what it can be used for first. There are provisions you can tailor to fit your particular situation.
First of all, you do not need to sign a set form, you create it to where it just covers one specific transaction, or to cover one particular property. You can specify weather it is to cover bank accounts, or just for properties. You can give authority at different levels and even for a set amount of time. For instance, you can give the authority to cover one transaction, or you can enable it for one month or six months or more. Most of all, if you are using it just to cover you in case you ever become incapacitated, such as when hospitalized, you can make a Doctor say that before it does become active. You can give someone the authority to take care of your business while you are out of town. Or fro any reason that you may need someone to take care of your personal or business finances, documents or any situation that your presence would be needed in order to complete the action. That person has just as much legal right to sign, agree, turn down or change any action that you yourself would be able to do. And once you sign it, they can do it without including you in the process. This makes it very easy for this person to set things up where they benefit them more than you.
Basically, unless you make certain declarations stating what authority you are allowing this person to have, you are giving them full wide open access to your purse or wallet. This includes being able to sell your house out from underneath you. They could change the ownership of anything you own to reflect themselves or even someone else as the owner. They could get a loan on your home or car. They could add or subtract names from bank accounts, even if they are joint accounts. (Unless you specify needing two signatures for changes or large withdraws)
FULLY TRUST YOUR AGENT
There is a reason that your agent, the person your giving it to, is called your attorney if fact, because, in fact, you are giving them full authority to represent you if you are not there. Now, you can make this person report to you periodically, or if you ask the agent about a particular transaction, you can make them divulge all of the information within a certain amount of time. If they do not render this information to your satisfaction, then you can take them to court and make them put it back the way it was. But, you have to catch them, and ask them about it, then if they don't, you have to do something about it. It does not automatically happen.
APPOINT A THIRD PARTY THAT CAN MONITOR THE ACTIONS
It is best, unless it is your wife, or business partner and you fully trust this person, to have a third person set up with the authority to monitor what your agent is doing. Do not give all this authority to be under only one set of eyes. There are rules and regulations that the agent has to follow when it comes to the relationship between the agent, the other person, and yourself, the Principal, but,............... nobody is going to be watching this person to make sure they follow those rules.
ONLY GIVE AS MUCH AUTHORITY AS NEEDED
Make sure that this is your idea, for a need that you have which is to your benefit. Do not ever sign one of these papers, just because a family, member or a friend or caretaker tells you that you need to do this. The lawyers that draw these documents up are getting paid to create it, so if nobody objects to it, they assume everything is fine and will not try to teach you or tell you about the harm that this can allow to happen. And it would be legally done. Only after the fact can you take away this position, or make someone answer for their actions.
RULES FOR THE POWER
The person you give this authority to is the agent. You are the principle. This creates a relationship of trust that held to a strict set of rules that are stronger than your regular rules that most people follow from day to day. They are not to use your name for getting credit that they would not be able to get without your name. They are supposed to keep their finances seperatefrom yours. They are not supposed to be making a profit on your investments. They can not make self dealing actions where they benefit from them and you do not. They are not supposed to sell themselves your property for less than the true value of it. Now, you can give them the permission for any of this, such as sharing the interest earned on an investment they made for you , with your money. But only if they make you aware of this opportunity, and you agree they can make the profit. Another example of this is if they sell a property for you, and make more money than you were asking for, you can allow them to keep the profits. In fact, it is still your money, and you can still do what ever you want to with it, even if you want to give it all away. It just has to be YOUR intentions. Without someone pressuring you to do it.
The only automatic protection you have is if it is a statuary power of attorney, it becomes inactive if you become unable to mentally or physically follow the actions, like you are in a coma or something like that. They all end when you die. That is the only protection that is given to you. And even that can be sidestepped by adding the word Durable to the power. Your best protection for you and the person you are giving this power to is to set the authority level for as much as you need only. And not create a document that is a set form which gives them full authority over everything. Also, set it for the particular action, property or period of time that it would be needed ONLY.
READ IT / ASK QUESTIONS / UNDERSTAND
Of course you need to read what you are signing, but more importantly, you need to understand what you are signing. And not just the explanation of the person you are giving the power to. Have the lawyer that is creating the document explain it to you, and make sure that it only gives the power to the person that YOU intended for them to have. The wording in these documents can be tricky so if you have any questions at all, DO NOT SIGN IT UNTIL YOU ARE SURE. The lawyer works for you, this includes giving you advice about your situation, and explaining it to you. They have to sign a paper saying that you do understand this and that it has been explained to you, and that you are capable of understanding it. But that does not always mean that they are doing that. If you do not ask questions about it, they will assume that you understand and need no further discussion on it.
TRUST / TRUST / TRUST
Don't ever sign one of these because a person tells you that you need to. Do not sign one unless you have a real reason for it's need. Do not ever sign one without reading it and understanding it. And most of all, know that if you ever have any questions about the persons intentions or actions, you still have control and can stop them from using the authority, and you can make them produce all information about any action they take, and if you catch something that they did without having your best interest at heart, you can do something about it. Remember, giving someone the open chance to take your stuff may make someone that is not completely honest in the first place, take advantage of an easy situation. So even if you trust them to start with, you should keep a watchful eye on them. Better safe than sorry. And if you leave all of your estate planning to one person, they may be able to change your plans and your family may find it out too late to do anything after you are gone. So pay attention to the documents you sign. Pay attention to the documents that can be signed for you. And my best advice to you, is never give all of the power to just one person. Even if it is your favorite one.
If you have parents who are getting up in the years, include the whole family in the planning for the estate, the wills and any other documents with the property or money that would become your inheritance. Do not accept that the person appointed for this position, always has the parents best interest in mind. They might not. They might not start out that way, but if left alone with the cookie jar wide open, never assume that there wont be any cookies gone if no one is ever looking. And if they get away with a few little,"harmless" deals, they may be compelled to keep doing it. Then they start lying about it. Then, they fell like they have already stepped off in the deep end, so they might as well go swimming. And if they continue to get away with this unnoticed, they may eventually feel entitled to your money. Just because they SAY they do not like candy, if you keep making it easy to take, they might not care that is from your baby.
I hope this is useful to someone who may not understand the talk of a lawyer, but can understand straight talk from someone taking the time to say it in layman's terms. And if it makes just one person ask a question that should have been asked, it will all be worth the time it took to write this.
Please add comments or stories where this legal paper has helped or harmed you. Maybe someone can learn from your experience.