If you’re a solo ager and you must use a power of attorney (POA), make it as limited as possible.
We received the following from a solo ager listener: “You state in your book that a financial power of attorney is not necessary if there’s a solid living trust in place. (I don’t feel the risk of abuse is a critical concern in my case). However, my lawyer says I need to name one.”- Lori
This attorney refused to complete our listener’s estate plan unless she included a financial power of attorney.
Why I avoid POAs whenever possible
Powers of attorney are very overpowered. It can be executed with just a simple notary with no witness requirements. But, for that basic execution, there is unlimited control over someone else’s finances, house, etc.
Powers of attorney are pretty unstructured. There are no guide rails in the law for how an agent under the POA is compensated or whether there should be an accounting proceeding.
Besides, if you have a revocable living trust, then you have most of the benefits of a power of attorney. You would only need a POA if you are traveling abroad or incapacitated. You’d need someone to manage the funds on your behalf so you don’t fall into arrears or foreclosure.
I don’t think the risk of having a financial power of attorney is worth covering those outlaying scenarios. If you ever read a standard power of attorney, you’ll see that the agent has the power to do almost anything with your finances and property.
A supreme example from the news headlines is of Brooke Astor, a famous New York philanthropist. Her son was able to siphon about $80 million from her estate with a simple POA, contrary to the rest of her estate plan.
You might read the scenario above and say, well, I’d only give power of attorney to someone I trust. We’ve seen people who used to be the most trusted candidates go astray. Money does interesting things to people. This fear should not keep you from creating an estate plan, but keep in mind that you should minimize the use of a POA.
Why would an estate planning lawyers insist you sign a POA
The short answer is that I don’t know why anyone would be that stubborn to make their client do things their way. It’s like a doctor saying, “Get this surgery and you will be better. If you don’t listen to me, then I won’t be your doctor anymore.” If they can’t explain their reasons to your satisfaction and still insist, consider changing lawyers.
Some attorneys have always done estate planning “packages”, and haven’t changed with the times. It might be hard to leave an attorney that you’ve been working with for a long time and who you are otherwise comfortable with. But, if you can’t get a decent answer to this pretty powerful question, it might be worth getting at least a second opinion.
Ways to limit a power of attorney
If you feel that you need a power of attorney, then ask the attorney to make it a limited one. There are two main ways to limit a POA:
The first way is to get a springing POA instead of a general POA. A general POA is effective immediately upon signing. A springing POA is conditional; those powers only come into existence if certain conditions are met. Usually this means that you must be deemed incompetent by two physicians.
The second way to limit a POA is to only choose specific powers for the agent to have. You don’t want to check the box that says your agent under the POA has the power to gift all of your money. And you certainly don’t want to check the last box that says, “All of the above.” Carefully choose only the powers that are needed to accomplish your goals. If it’s not something you would do in your own capacity, don’t give someone else the power to do it!
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