Monday, May 16, 2016

Is Your Power of Attorney Valid?




Legalzoom defines the Power of Attorney as “A power of attorney is a document you can use to appoint someone to make decisions on your behalf. The person you designate is called an ‘attorney-in-fact.’ The appointment can be effective immediately or can become effective only if you are unable to make decisions on your own.”

Makes sense, right?  If I become incapacitated for any reason, my bills still need to be paid, the world continues to move forward, and life continues around me.  I should be able to appoint, or better said, legally select someone to handle my financial affairs.  What if the time comes to execute the Power of Attorney and even though you have a 100% legal document, that you have prepared in conjunction with a lawyer and yet was deemed not acceptable?  Wait a minute, I did use the words legal and lawyer, so all would assume that this is a legit process.

Guess again, as banks may not accept the valid, state approved, legal document you are bringing to them.

Case in point – my aunt in Florida recently went into hospice care, which meant that the legal document appointing me her power of attorney went into effect.  I called up her bank to find out the proper process on how to handle this process.  I was clearly told to bring in the document, they will make a copy and then I will have to sign some papers.  I asked if my aunt would be needed and was told no, I could do this on my own.  When I went to the bank, they told me that they would make a copy of my legal document and have their lawyers review it and get back to me.  They got back to me saying that the document was no good as it was over 10 years old and my aunt would have to come into the bank.  I immediately called our local Florida lawyer who told me that the laws changed in 2011, but all pre-existing POA were still legally, 100% valid, as stated below in the Florida law (http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0709/0709.html)

709.2106 Validity of power of attorney.—
(1) A power of attorney executed on or after October 1, 2011, is valid if its execution complies with s. 709.2105.
(2) A power of attorney executed before October 1, 2011, is valid if its execution complied with the law of this state at the time of execution.

Actions that could be taken:

  • Lawyer sends a letter to the bank contesting their decision – That means that there is some confrontation and the resolution could extend beyond the ill or incapacitated person’s life.
  • Go to the bank and sign their documents – That means bringing the ill person to the bank, in my case, leaving the safety of hospice care.  At no point did the bank offer to come to us (5-minute drive).  Quickest resolution, based on the effect on my fragile aunt and person-we-needed-to-see’s lack of compassion, was not an experience I wish to replicate (my aunt’s final “field trip”).
  • Rewrite the Power of Attorney document – That means draft a current legal document that complies with the newer laws.  For a healthy individual, this is a good option; however, when terminally ill and time is of the essence, this may not be the best option; also you are not ensured that the bank will accept.
  • Talk to the bank when healthy – That means making sure the bank accepts all relevant documents, and where necessary, see if they can set up their “long form” POA now.  Lesson learned, but neither discussed nor advertised at the banks.


Interestingly enough, the New York Times had a related article entitled “Finding Out Your Power of Attorney is Powerless” (//www.nytimes.com/2016/05/10/health/finding-out-your-power-of-attorney-is-powerless.html?emc=eta1).  The article hinges on the banks’ arguments for their position on the concern of “the financial exploitation of older adults.”  OK, I get that.  In my case, I am more concerned about the well being of my aunt, the ability to pay her bills and, truth be told, would rather have her continuing to live than her money.

I write this to tell of my experience, to pass on what I have learned, and to provide a forum to discuss this issue.  When faced with end of life situations, we all hope to rely upon the mechanism put in place to protect our loved ones and us.