What is a “Power of Attorney” (and why you probably need one)? Part 3

In Part 1 of this blog post, I addressed 1)  what a Power of Attorney (POA) is and 2) the different types:  limited vs. general/durable and springing vs. immediate. 

In Part 2 I talked about the powers that should (and sometimes are not) granted in a Power of Attorney (POA).  In this Part I’ll be talking about:   What a POA can’t do.

What a Power of Attorney Can’t Do

First, a person whom you appoint as POA cannot override your decision-making power.  The POA is not in charge – you are!  If a person whom you appoint as POA is trying to overstep his role, then it’s time for a serious talk, and if that doesn’t work, it’s time to revoke the person’s POA authority.

Second, a POA ends at death, so your power of attorney is not something that helps take care of business after you die.  That role is the Executor of you Will.

Also, a POA cannot write or amend a Last Will and Testament for you.  However, there are way a person who is appointed as your POA might be able to decide who gets certain assets at your death by setting up beneficiary designations (like on your life insurance), or setting up joint ownership on accounts or real estate.  (Beneficiary designations and joint ownerships take precedence over a Will).

Next, there are a couple federal agencies that have exempted themselves from state POA laws—the Social Security and the Veteran’s Administration.   Don’t bother contacting either one and telling them that you are someone’s power of attorney—they will tell you they don’t care!

Each of those agencies has their own version of something like a power of attorney in the event that a person needs someone to act on his or her behalf.  The agency will make their own incapacity determination, their own selection of who to appoint, and each has their own rules surrounding all of that.  For example, Social Security has program called “Representative Payee.” 

My clients sometimes encounter other places, like certain financial institutions or insurance companies that tell them they do not honor POAs.   For my Indiana clients, I tell them that there is a state law that actually provides financial penalties for failure to honor a valid POA.  Generally, sending a copy of the financial penalty statute does the trick and the company suddenly finds that they can honor a POA.

If a POA document is older, companies sometimes request that the older POA documents be certified—meaning attested that it is still in effect and has not been modified or revoked.  A certification may be signed by the preparing attorney, or by the person creating the POA if possible, or by the person acting as POA.  It is reasonable for a company to request this, and we often prepare certification for our clients when the POA is needed. 

In the next Blog installments on Powers of Attorney, I’ll be covering:

  • Who to select as your Power of Attorney
  • How to create a POA
  • How to revoke or amend a POA
  • What do to with your POA documents
  • What the person who you appoint needs to know


Necessary Lawyer Stuff

This blog is provided for general information and is not legal advice.  You should not take any actions based on the content of this blog without seeking the advice of an attorney.  To get advice on your particular situation, seek specific legal counsel from your own attorney.  Also, some of the content of this blog is Indiana-specific and may not apply to your particular state of residence. 



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