Financial Power of Attorney

What Is a Power of Attorney?

You can give an "agent" the legal authority to act in your name, to make decisions, and take actions on your behalf. The document granting this authority is called a "Power of Attorney."

Why You Need a Power of Attorney?

An Estate Plan without a Power of Attorney for financial matters or a poorly drafted Power of Attorney can cost you thousands of dollars in conservatorship Court proceedings. The standard Power of Attorney may be more dangerous than handing someone a blank check.

A well-conceived Power of Attorney created by Idaho Law Group can solve both problems. Idaho Law Group has the expertise and experience to make sure your Power of Attorney gives your agent all of the powers he or she will need, while making sure those powers are sufficiently restricted to protect you and your assets.

What Is a Power of Attorney?

You can give an "agent" the legal authority to act in your name, to make decisions, and take actions on your behalf. The document granting this authority is called a "Power of Attorney." A Power of Attorney specifically created to appoint someone to make financial decisions for you is called a “Financial Power of Attorney."

Why You Need a Power of Attorney?

An Estate Plan without a Power of Attorney for financial matters or a poorly drafted Power of Attorney can cost you thousands of dollars in conservatorship Court proceedings. The standard Power of Attorney may be more dangerous than handing someone a blank check.

A well-conceived Power of Attorney can solve both problems. Idaho Law Group has the expertise and experience to make sure your Power of Attorney gives your agent all of the powers he or she will need, while making sure those powers are sufficiently restricted to protect you and your assets.

There Are Different Types of Powers of Attorney

There are two classes of Powers of Attorney

Financial Power of Attorney

Power of Attorney documents that are not for medical decisions are usually referred to as “Financial Power of Attorney.” These cover all matters of life other than medical decisions.

Health Care Power of Attorney

Idaho law refers to a document granting authority to make health care decisions as a “Durable Power of Attorney for Health Care.” (Idaho Code 39-4510) This document is sometimes called a "Health Care Directive" or “Advance Directive.”

Financial Powers of Attorney Are Important

Think about all of the things that a person often does:

  • Signing a Check
  • Using a Debit or Credit Card
  • Communicating with a Creditor
  • Communicating with a Service Provider
  • Going to the Bank
  • Signing Legal Documents
  • Retrieving Records
  • Making Business Decisions
  • Communicating with Government Agencies
  • Dealing with a spouse
  • Communicating with a minor child’s school

You may be the ONLY PERSON AUTHORIZED to do these things.  If you do not have someone else legally authorized to do these things on your behalf, any unplanned absence or incapacitation could create havoc in your life and the lives of those you love.  If incapacitation becomes long-term, it could cost thousands of dollars to get a court order for Guardianship and Conservatorship.

Is a Power of Attorney Dangerous?

If you give someone a signed blank check, that person is authorized to take your money. If you give someone Power of Attorney, that person is likely authorized to do much more. There are three ways attorneys mitigate this risk.

Many attorneys supply a list of powers and have a client choose which powers to authorize. This tactic successfully limits risk. However, if one of the powers needed was not authorized, the act of getting the Power of Attorney has been wasted and Court intervention will likely be required. Idaho Law Group opts for other risk management techniques.

Many attorneys supply a list of powers and have a client choose which powers to authorize. This tactic successfully limits risk. However, if one of the powers needed was not on the list, the Power of Attorney will be insufficient and Court intervention will likely be required. Idaho Law Group opts for other risk management techniques.

Most clients have family they trust and those they do not to make financial decisions on their behalf. Before choosing any fiduciary (legal helper), it is important to be comfortable that person can be trusted to fill the position competently and with integrity.

Idaho Law Group distinguishes itself from many law offices. Our Power of Attorney documents grant all the powers that an agent may need.  We have each agent sign an “Agent’s Acknowledgment” prior to receiving power. This process makes sure that the Agent understands he or she

  • Must act only in your interests
  • Must make all actions in accordance with your Estate Planning
  • Must keep records of their actions
  • Understands any violation will lead to legal liability

An Agent under such restrictions will typically not accept an appointment unless he or she has your best interests at heart.

If You Have a Trust, You Still Need a Power of Attorney

A Financial Power of Attorney is included with every Trust-based estate plan created by Idaho Law Group.

 

People who use Trust-based planning transfer most of their assets to a Trust. Those assets are controlled by a Trustee. A Power of Attorney is not needed to manage assets inside the Trust. However, a Power of Attorney is still needed and used for the following reasons listed below:

For tax purposes, it is sometimes advisable to leave retirement accounts.  For litigation purposes, it is sometimes advisable to leave vehicles and other miscellaneous items outside of a Trust.  The Trust will instead be made a beneficiary by way of a “Transfer on Death” or “Pay on Death” designation.  In such cases a Power of Attorney is needed to deal with these items.

For tax purposes, it is sometimes advisable to leave retirement accounts.  For litigation purposes, it is sometimes advisable to leave vehicles and other miscellaneous items outside of a Trust.  The Trust will instead be made a beneficiary by way of a “Transfer on Death” or “Pay on Death” designation.  In such cases a Power of Attorney is needed to deal with these items.

It is not uncommon for a person  to forget to transfer an asset to his or her Trust. A Trustmaker may  inadvertently buy a new items with a “title” or set up new accounts in their own names rather than in the name of the Trust. An Agent can use a Power of Attorney to place these items into the Trust and avoid probate.

It is not uncommon for a person, in his or her final illness, to receive an inheritance from a deceased sibling (or other person). An agent, who has authority to transfer assets to a Trust, should act quickly to move these assets into the Trust to avoid the need for probate.

Remember that a Powers of Attorney can authorize an agent to do much more than asset management. An agent can communicate with government agencies, schools, and deal with other day-to-day needs that have nothing to do with assets placed in Trust.

Immediate Powers vs. Springing Powers

Most Powers of Attorney are immediately effective. However, some are drafted with “springing” powers. This means that the agent’s powers “spring” into effect after a finding that you are incompetent to make your own decisions. This “incompetence” is defined within the language of the Power of Attorney document. It sometimes requires court intervention, but often defers to the opinion of a primary care or treating physician.

 

The following is a list of reasons that  “immediate” powers are used rather than “springing” powers:

When a Power of Attorney is needed, it is usually sudden and unplanned. Someone needs to be able to take over your day-to-day responsibilities quickly. Dealing with a doctor or dealing with Courts delays this process and can harm your health, your estate, and your family.

Asking a doctor to sign a note saying an unconscious person is incompetent to manage their personal affairs seems simple. However, any time a doctor is asked to make a determination with legal consequences, he or she thinks about liability. The doctor will consult legal counsel. Even when given the green light, doctors still may not be willing to comply.

When a Power of Attorney is needed, it is usually sudden and unplanned. Someone needs to be able to quickly take over your day-to-day responsibilities.

 

Without a Power of Attorney, your loved ones will face delays in dealing with health care professionals while waiting for the court to intervene. This delay can harm your health, your estate, and your family.

Powers of Attorney are often used while a person is competent and simply

  • Gone on Vacation
  • Gone off to College
  • Gone for Business
  • Gone for Service (i.e. Military, Missionaries, etc.)

You should only grant a Power of Attorney to an agent you trust. If you believe your agent will trustworthy in the future when you become incompetent, then your agent should be trustworthy now while you are well.

Case #1

Jennifer's mother, Mildred, has just gone into a nursing facility. Jennifer is now trustee of her mother's Trust and is caring for all of her mother's needs.

One day, Jennifer called Idaho Law Group upset that the investment broker says that Mildred's IRA is not in the trust, so they won't talk to her about it. The attorney assures her that everything is okay because IRAs are are not usually transferred to a Trust because of tax issues.

The attorney reminds Jennifer that her mother appointed her as her agent in the "Power of Attorney" document and that Jennifer signed an acceptance of that power some years ago.

Jennifer submits the power of attorney documentation to the investment broker, and now they are willing to work with her on her mother's IRA.

Case #2

Kaycee's husband, Bill, works in the oil fields. He is gone a lot, and his supervisor told him that he should do a power of attorney document so his wife can act on her husband's behalf while he is gone. To save money, Bill used a ready-made form. It came straight out of Idaho statutes online, so he is sure that it is legal. Bill was injured in a work accident and will need skilled nursing care for the rest of his life.

Kaycee wants to do estate planning for Bill and for herself. She wants to ensure that their children will be taken care of if anything happens to her. The attorney at Idaho Law Group tells her that he can help her with "her" planning but needs to see the power of attorney to see if he can help with Bill's planning.

Unfortunately, Bill did not grant the authority to do his planning for him. Now, Kaycee will have to go through expensive guardianship and conservatorship proceedings just to do their estate planning.

An Estate Plan with a poorly drafted Financial Power of Attorney can cost you thousands of dollars in Conservatorship court proceedings.

We provide education and counseling to individuals and families so you can make informed choices with confidence.

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