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Law Offices of Ronald W. Rutz
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July 12, 2003: The Case for Durable Powers of Attorney

The topic this month is Durable Powers of Attorney. Besides not having a Will, the next biggest mistake for anyone over 65, especially someone who is single, is not to have Powers in place, or worse, to have the wrong kind.

Without Powers, it would be necessary to spend several thousand dollars and to go to Court to have a conservatorship set up. Beside the costs involved, the judge would decide who would make decisions, require bonds and reports, and otherwise become involved.

Too many people incorrectly conclude that Powers are unnecessary if assets are held in joint tenancy. But joint tenancy is only effective at death and gives no authority to handle the other joint tenant's interest. Many also assume that one spouse can sign and bind the other spouse but again, the marriage relationship does not give that right.

Today almost all Powers are durable. An ordinary Power is revoked if someone dies, actually revokes his or her Power, or becomes incapacitated. But incapacity is just the time when someone needs the Power the most. So even if the word "durable" does not appear in the Power, it is durable if it has language in the document saying that it survives disability or incapacity.

There are many different Powers, but the kind that I recommend permits an agent to do anything that needs to be done. Yes, this gives the agent a great deal of power, but that is exactly the point. Otherwise, there is the risk of not being able to use the Powers just at the time when it is needed most.

If, for example, the Powers contained a condition that the Powers could only be used "if I am incapacitated," what does that mean? If a third party refuses to recognize the agent's authority because of such wording, it is necessary to go to Court for clarification, thereby freezing matters perhaps for weeks.

Thus not only can the all-encompassing Powers be used if someone is unable to act, but also if unavailable (on an extended trip) or does not want to do a particular thing.

I recommend signing four original Powers. Instead of making a copy of the Powers for the file, third parties are attempting to keep the original Powers for their permanent records and not return the document after use. Thus if only one or two were signed and then kept after use by the third party and the principal is unable to sign additional Powers, it would be necessary to go to Court and set up a conservatorship, exactly what we sought to avoid in the first place.

There are certain people who refuse to give Powers because the agent might misuse his or her authority. Although that may happen, the agent can always be held accountable for such acts. And remember an agent who might abuse his or her fiduciary position should not be designated as an agent in the first place. But the bottom line is that if an individual does not make the choice, then the Court will decide in setting up a conservatorship, perhaps selecting a person or an entity unknown to the individual who refused to do a Power, or worse, picking a person who the individual did not want in that position in the first place.

Keeping possession of the signed originals is the key factor to prevent misuse. An agent cannot do anything without the Powers, even if the agent has a copy. If necessary, let the third party have access and after the matter is handled, if possible, get back possession of the original.

Here in northern Colorado a set of four Powers usually costs around $95. Thus, get Powers if you do not have them, or if you do, look at them to see if there are restrictions that might inhibit their use, just when action might be needed the most.

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