“Your power of attorney is drafted to be effective as soon as you sign it. Your agent … your children acting on your behalf … don’t have to prove you’re incompetent before writing checks for you or directing your medical care.”
The client raised her eyebrows: “Why would I want that? I don’t want them taking money out of my bank account while I’m still ‘with it.’ I really don’t want this at all, but if I must have a power of attorney, I only want them to be able to get at my money if I can’t ‘do’ for myself.”
The attorney nodded. “I understand that. What you’re asking for is a ‘springing’ power of attorney. But what we’re talking about isn’t really whether your kids can get into your money. What we’re trying to do is make it easy for them to take care of you when you need them to.
“If your power of attorney doesn’t work unless you’re incompetent, then the bank won’t let them write checks until they prove to the satisfaction of the bank’s attorneys that you are incompetent. That’s harder than you think.
“I’m agent under power of attorney for a lady right now, and it’s a ‘springing’ power of attorney. It only becomes effective when her doctor agrees that she is unable to manage her financial affairs.
“She had a stroke and is housebound and bedridden. We can’t take her to a doctor, and doctors don’t make house calls anymore. We’re stuck until we can get Internet in the house so we can get a HIPAA-compliant remote physician visit set up.
“Meantime we have bills to pay – her caregiver doesn’t work for free, and the regular household bills need to be paid – and friends and family are paying out of pocket to keep her afloat until we can get all that done, which might take weeks, or a month or more.
“And the bank doesn’t have to accept the physician’s letter. They might just decide that the risk of being sued is too great – after all, if the physician is wrong, my access to the lady’s accounts would be unauthorized. That’s why a lot of banks won’t deal with a springing power of attorney.
“So, we draft your powers of attorney to be immediately effective. You control your children’s access to your funds by controlling the document. Is that OK?”
Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
Wills & Trusts | Estate Planning | Probates & Estates
Elder Law | Real Estate | Business Planning