No one, including your husband (or wife) is automatically your agent under a Power of Attorney. The person who you wish to be your agent must be appointed in an instrument with the specific wording required in your particular State and must be executed with the formality of other estate planning documents such as a Last Will and Testament, i.e. witnessed by two (or three) disinterested witnesses, sworn to under oath, and notarized.
A Power of Attorney is a very powerful legal instrument and should not be taken lightly. The person you name as your “agent” usually has all of the same powers as you have. This means that the agent could go to your bank with your signed document and take all of the money out of your accounts, and more. Regardless of the dangers of having one, this is probably one of the few legal instruments every adult should have. Without it a court may have to decide who will help you if you become incapacitated.
There are basically two types of powers of attorney. The first type is usually used for a specify purpose and is limited in time. For example, if you owned a piece of real estate in another State and wish to sell it, but don’t want to travel to that state for the closing. You could name another individual who could sign all of the closing documents on the day of the closing. Then the Power of Attorney would be limited to that particular day and only for the purpose of the closing of your real estate.
The second type, which most people prefer, especially between husbands and wives, is called a Durable Power of Attorney. These documents are usually broad in the scope of duties that the agent could perform and will be good until you revoke it or die. This document will also last through your incapacity, which is when your will need it most. Most States require specific language in the document saying that it is a Durable Power of Attorney.
There is also third type, calling a Springing Power of Attorney. This instrument does not become “active” until such time as you become incapacitated and need someone to act on your behalf. This document usually specifies when it will “spring” into being. Depending upon the terms specified, but usually there is a requirement for one or two physicians to attest to the fact that you are incapacitated and cannot do certain tasks i.e. pay your bills. We do not do many of these because it may be difficult to locate the physicians necessary in a timely manner and if a person is that incapacitated; they may not even remember that they have the document, or where it is kept.
Although, the Power of Attorney will be valid until you revoke it or die, be aware that many banks, brokers, etc. may not honor these documents if they (the bank, broker, etc.) determine that the document is “stale”, meaning that it is too old. We find that this practice is more common with the larger national banks than the local ones. Some States have statutes which prevent banks, etc. from asserting this claim of staleness.
When discussing these documents with your attorney, consider the “best” person for the job. Some people pick their agent not by considering who would be the best, but by who is the oldest child, who lives the closest, or some other “plan” so they don’t offend anyone. Pick the best person you think will do the job for you. You should also pick a back-up individual in case your first choice dies before you or becomes unable or unwilling to serve. Your document could say you want your husband, Peter, but if he can’t serve, then you want your daughter, Pamela. Some individuals want to have two agents serving together, Bert and Ernie, jointly. They are trying to set up a situation where there are checks and balances (one will watch the other) and feel safer with this arrangement. This can become cumbersome when something needs to be done quickly and one of the two can’t be located.
Some final thoughts-The document should be specific as to what the agent is allowed to do. The document should be drafted by an attorney who will ask the right questions of the client before preparing the Power of Attorney and you should ask the attorney exactly what the language means before you sign it. The document should be safeguarded as there is usually only one original and keep in mind that some government agencies i.e. Social Security, and other institutions will not honor it regardless of its age, formalities, etc.
George P. Guertin, Esq.
Guertin and Guertin, LLC
North Haven, Connecticut