Attorney's authority can not prevent guardian

Generally durable power of attorney (GDPOA) is often suggested as a means of avoiding guardians, or "survival test". Although such documents are an important tool for comprehensive real estate planning, GDPOA alone, or a combination of final intention and testimony, may not provide the protection that the manufacturer desires.

GDPOA is a legal document that allows a "principal" to appoint another person ("agent" or "lawyer") in order to do the principal's business and finance on behalf of the principal. This document is useful when you do not have a principal or if you can not do business physically or mentally. Documents are "durable", so even if they become legally incompetent, they remain effective and effective. In order to be effective for real estate transactions, GDPOA must be recorded in the county bookshop where real estate is located. GDPOA is distinguished from a limited power of attorney by application to health care lawyers and a wide range of financial matters.

Durable power of attorney is not useful for planning for splitting, incompetence, or incapacity, and there are few to avoid guardians. If the principal can not be disabled, power of attorney without durability will be invalid. Therefore, among the different forms of attorney available, GDPOA is the most promising in a disability, incapacity, or incapacity plan.

However, in fact, GDPOA is fairly weak and ineffective. Attorney's authority is very general and the concept of GDPOA is becoming very general, but the agent holding the attorney's documents is treated as if he is standing in the president's shoes Not necessarily. Individuals and institutions reject GDPOA at the time of presentation. Elderlaw lawyer Scot Selis wrote to SeniorLawToday.com as follows:

"If you have been frustrated by refusing the right of representation, you are not alone.The power of attorney allows individuals to choose other people or people to process their finances, but many monetary We frequently refuse to properly sign the institution and respect the witness's testimony. "

It is truly unwilling for the agent to find that the agent is denied or ignored on behalf of the agent. However, refusing to properly enforce the GDPOA hurts the principal's intention, usually when creating a GDPOA, assuming that he or she is making things easier for the family. An agent may file a court with appropriate jurisdiction to enforce legally exercised powers, but the view that it is necessary to sue for transactions to be made in the ordinary course of business , The lawsuit is expensive, time-consuming, there is no intention of the entity creating the GDPOA.

The problem is that the group of lawyers complained to lawyers, the Attorney General's office, and the Department of Commerce about banks that require the use of banks to refuse to respect their own lawyer form and the lawyer's authority It is widespread. These complaints, although laws governing GDPOA over the years have been unified, actual problems remain.

There are various reasons why individuals and institutions reject GDPOA. The most common reason is that GDPOA is "old" or too old. However, this reason is not based on the legal rights, privileges, or responsibilities of the bank or institution. In most states GDPOA without expiration date is permitted. Banks generally reject these documents based on age.

Another reason is that GDPOA is not recorded. As mentioned above, GDPOA records are necessary for conducting transactions including real estate but generally it is not necessary for other financial transactions. Nonetheless, individuals or institutions may require documentation records. However, recording is not always the best benefit for the client, especially if it is not necessary. Once recorded, GDPOA becomes a public record and becomes available to those who may request the same. Recorded GDPOA certified by the county recorder may be a dangerous device with wrong hands.

Another reason often rejected GDPOA is that it does not allow GDPOA to do its intended transactions to agent agencies. The reason for this is based on the law as individuals or agencies may be held liable if GDPOA is allowed to conduct transactions not approved by GDPOA. In addition, individuals or agencies that accept GDPOA and facilitate transactions may be held liable if an individual or agency informs that the agent is doing something that is not permitted by GDPOA.

This potential responsibility is, of course, a major barrier to individuals and institutions that are being asked to accept GDPOA. This obstacle is particularly acute when agents use GDPOA to close accounts or to settle policies or assets because individuals or institutions can not know the final disposal of revenue. For example, if GDPOA does not allow agents to give gifts to agents or third parties, or if state laws prohibit such transactions, close accounts or liquidate assets Inappropriate gifts by doing.

Except for the reasons given, there are many motives to refuse GDPOA, ranging from valid to ignorant. There are many appropriate motives. Organizations may prefer legal certainty and protection of the prosecution court's approval. In such a case, the presentation of GDPOA may actually cause or affect the application of guardianship. Organizations may doubt inappropriate use of GDPOA sincerely. The agency may doubt that the agent is incompetent or otherwise obstructive.

Inappropriate incentives that cause rejection of GDPOA include maintaining asset management, discovering inappropriate management of assets, preventing excessive influence of people other than proxies, agents of assets that are intended to be used Disagreement with the intended use is legal. However, because people refusing GDPOA do not recognize inappropriate motives, there may be no way to distinguish between inappropriate motives and appropriate ones.

Compounding the difficulty of acquiring a facility to accept GDPOA is a motivation for families trying to manage the property of elderly people. Many GDPOAs are simply deducted by family applications for parents. Diane Armstrong testified before the Senate Senate Special Standing Committee aged.

"Most of these are [guardianship] An application is filed by an adult child who is going to rule some personal and / or financial problems of relatives of the elderly. They are brothers' battles rooted in the problems of inheritance and control, often expressed as "a contest before a thinly covered death". Everyone is in danger if it reaches 62 in the explored asset. A forensic psychiatrist reports about "so-called" protection proceedings "" A lawyer appears every 100,000 dollars in a particular real estate, with families appearing every $ 25,000, if no money, no one will show up " (Harold T. Nedd & # 39; s Fight for elderly care, USA Today, July 30, 1998).

It is similarly disturbing, court In many cases, GDPOA is ignored. Documents that most people rely on to reduce the opportunities of parents appointed to the courts are often ignored by the court of the prosecution. Diane Armstrong testified in front of the Special Senate Committee on Aging.

"When elderly people are brought to the court and forced to prove their abilities, the system will turn out as soon as it does not work. Please place it in the code every day. Judge ignores durability - The judge ignores the list of preselected surrogate decision makers. The current system will not work.

As a result, GDPOA does not provide complete protection from parents. In particular, if you anticipate that such protection is necessary due to the size and composition of the real estate, the composition of the family, or due to the lack of cohesion of the family, you need to consult a real estate planning lawyer We are familiar with trusts designed to maintain and maintain property management and court involvement and non-controlling decisions. Such trust plans can provide a more comprehensive solution than GDPOA and final vows and testimony as part of a comprehensive real estate plan.

Nevertheless, there are several strategies that will help increase the chances that GDPOA will be accepted by individuals or institutions. Firstly, review the real estate plan every year and regularly rerun GDPOA. Second, we will provide copies of GDPOA to agencies prior to illness. Request a receipt from GDPOA and a letter from the institution that acknowledges the outcome of the review. If there is a letter from the agency that the GDPOA document will be accepted, there is even a high possibility that GDPOA will be accepted in the future. When a person providing a letter is using GDPOA, it is always there at least in the facility.

Third, we will implement our own GDPOA of this institution. Some banks and securities companies need to sign a lawyer's form in order for the customer to handle the customer's account. Typically, as long as you do not withdraw the provision of GDPOA and simply strengthen it, there are no mistakes in these short form attorneys. If you have any questions or concerns, please take a copy and let the real estate planning attorney review it. Finally, before the disease occurs, add the name of the agent as "agent" or "lawyer" to all accounts. To take over assets accordingly increases the chance that GDPOA will be accepted without reservation when necessary, rather than vesting ownership of the agent.

But perhaps the best strategy for planning incompetence, incompetence and obstacles is a comprehensive real estate plan that includes trust.

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