Perhaps no other document is more common in estate planning than the durable power of attorney. I can certainly say it is the scariest document I draft. With the power of attorney, “common” does not equal “safe.” A power of attorney is a delegation of authority. It empowers the named agent, usually called the “attorney in fact” to transact on behalf of the person giving the authority. This can be extremely useful, particularly for those needing help managing finances. It can also cause irreparable damage if not handled correctly.
When I was seven years old I received my first pump-action BB gun as a birthday gift. My father took me out shooting on our farm. Without bothering to look down range, I sighted in on an unlucky plastic army man. I fired, narrowly missing my kid brother who was skipping down to join us. Dad knelt down and looked me in the eye. “BB guns,” he said, “are the most dangerous of all firearms, because shooters do not give them proper respect.”
I look at the power of attorney like a BB gun. The power of attorney is so common and often inexpensive that users do not bother to respect the legal authority it conveys. Consider that the holder of a power of attorney can do anything that you can do; sign checks, withdraw money, even invest in the stock market. I have seen many times how the power of attorney became an enabler of fraud and financial abuse.
Here are a few things to consider when making a power of attorney: 1. Is the document broad or limited? If the limitations are not specified in the document, it may convey more power than needed. 2. How many people are involved? As a general rule the more TRUSTED people who know about your finances, the harder it is for any one of them to steal from you. 3. How do you revoke it? Whenever you make a legal document, especially a power of attorney, know how revoke or cancel it.
Common sense takeaway for today: treat even simple legal documents with respect.
Chris Morgan is a licensed Utah attorney practicing elder law in Lehi. He can be contacted at (801) 874-5644 or http://www.elderlawutah.com.