We often think of a power of attorney as an all-powerful document, a way for an agent – the person taking the power – to take all responsibility for the principal’s – the person giving the power – financial, legal and health care matters. In many cases, that is exactly the effect.
The agent might be a spouse or child, a sibling or even a close friend. However, there are many times when a power of attorney falls short of accomplishing what an individual needs, either because of legal requirements that were inadvertently omitted or because of problems with mental capacity.
For example, the Commonwealth of Kentucky requires a specific provision within a power of attorney for an agent to transfer real property. This means that a power of attorney cannot simply rely on a general catchall provision to buy or sell property. In fact, a power of attorney is not required to be filed with the county clerk except for the transfer of real estate.
Likewise, the power to create, revoke, terminate or amend a trust must be clearly specified within a power of attorney document. Trust creation and termination can be crucial if the principal is applying for veteran’s benefits, Medicaid benefits or requires a special needs trust. At the time when a principal most needs the protection of a trust to obtain necessary benefits, the agent often finds his or her hands tied.
A power of attorney also may not be enough to protect the principal if the principal refuses to give up power during incapacity. A statutorily perfect power of attorney will not prevent a principal from making poor choices. Similarly, an individual with a severe mental disorder or dementia may be unable to protect himself or herself from exploitation with a power of attorney.
In these cases, a power of attorney will fail to truly protect the principal. For agents who have lost the mental capacity to sign a new document, it likely is that a guardianship proceeding will be necessary to prevent the principal from acting on his or her own, and to provide a means for the agent to meet the principal’s needs.
To protect yourself or a loved one, review your current power of attorney. Make sure the document includes any provisions that may be necessary in the future, or in case of an emergency. If you do not want an agent to have immediate powers, consider a “springing” power of attorney, a document that would not empower the agent until your disability. To protect yourself against your own future poor judgment, consider placing assets into a trust that includes specific provisions for your impairment.
Take a proactive approach to protect yourself and your family. Review your power of attorney to make sure it will protect you when it’s most needed.
Cynthia T. Griffin is a local attorney for Burnett Casey Griffin, PLLC.