Ask the Expert- Powers of Attorney

Today’s question was submitted through Avvo by a resident of Baltimore.

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Q: Can you name two sisters as agents under Power of Attorney, so that either one is able to conduct business at various times? We want to share the responsibilities. Our mother is in Maryland, one sister is in New York, and the other is in Virginia. We need to be able to carry out her financial affairs. Also, does Power of Attorney give us medical Power of Attorney as well or do we have to have a separate form for that too?

A: Yes, your mother can sign a General Power of Attorney (POA) naming both you and your sister as Co-Agents to handle her legal and financial affairs. Your mother must also decide whether to force you and your sister to act together or allow you to act independently, and that must be specified in the POA.

A Medical Power of Attorney, also called an Advance Medical Directive (AMD), is a completely separate document.

You mention the term “form” in your question. Neither POAs nor AMDs are “forms.” They are customized legal documents that must be drafted to the particular needs and desires of the individual signing the document. Many “forms” you might obtain off the Internet or from a legal software program are not worth the paper they’re written on.

Please understand that not all POA’s are created equal; it is crucial that this document be prepared by a knowledgeable and experienced Elder Law Attorney, such as the Fairfax and Fredericksburg Elder Law Firms of Evan H. Farr, P.C. One way to ensure the qualifications of your attorney is to look for one who is Certified as an Elder Law Attorney by the National Elder Law Foundation, the only organization accredited by the American Bar Association to certify lawyers in the specialty area of Elder Law.

As a Certified Elder Law Attorney, I believe it is critical that a POA contain certain very specialized “Asset Protection Powers.” Asset Protection Powers written into the POA will be essential in order for your mother’s Agent(s) to protect her assets from the catastrophic expenses of nursing home care should your mother need such care in the future. Attorneys who are not experienced Elder Law Attorneys often fail to put these essential Asset Protection Powers into the POA, and “forms” you might obtain almost always do not include these essential powers.

– Evan H. Farr, CELA

Another question:

This question was submitted through Avvo by a resident of Gate City, Virginia.

Q. My sister talked me into signing a Power of Attorney and now I must cancel this agreement. How do you cancel a Power of Attorney?

A. You can revoke a Power of Attorney at any time is because it is not an agreement, but rather a one-sided document that authorizes an agent to act on your behalf and manage your legal and financial affairs — a document you can create and revoke whenever you want, so long as you are competent.However, you don’t say why you feel the need to revoke the power of attorney. If it’s because you no longer trust your sister, then I would encourage you to select a different relative, or a friend, to act as your agent under power of attorney, because a General Power of Attorney is a vitally important legal document that every person needs, and is an essential tool in the event that, due to age, illness, or injury, you are unable to carry on your legal and financial affairs. Having a Financial Power of Attorney is a way of avoiding living probate – the time consuming, expensive, and publicly embarrassing process whereby someone has to go to court to have you declared mentally or physically incompetent and then one or more persons need to be appointed to serve as your legal guardian and/or conservator, which process is subject to ongoing court supervision including the filing of the dreaded annual accountings every year for the rest of your life.

Unfortunately, not all General POAs are the same, and you need be sure to get your power of attorney from an experienced elder law attorney to ensure that your POA contains vitally important asset protection provisions, assuming you have assets. The POA you might get from an estate planning attorney, or a form you might download from the internet or you might buy from an office supply store or create using some home lawyer software program, typically do not contain these important asset protection provisions, and can therefore interfere with the ability to do future asset protection planning for your benefit.

– Evan H. Farr, CELA

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.