You Got the Power --- Or Do You?

Earlier this week, a dear friend called with the news that her brother had passed on from an unexpected and serious illness. Following his shocking diagnosis last month, he’d asked for some general (and free) advice about setting up a power of attorney. Always an independent (and stubborn) individual, he (and my friend) ultimately decided to save some money and use a “power of attorney” print out form they’d found on-line (there are dozens of these). End result? They executed this “power of attorney” form without an attorney’s oversight. I haven’t seen the form they created together so I can’t comment on whether it was effectively executed.

But it’s hard to discern the law from a sample formbook. It turns out my friend had a misperception about what a power of attorney can accomplish. She mistakenly thought that this document would allow her, as her brother’s designated power of attorney, to close out his bank accounts after his death. She had planned on presenting this “power of attorney” document to his bank as soon as possible. She fully expected that the financial institution would either add her as a signatory to her brother’s account or allow her to withdraw the funds in that account. It was a difficult task to tell her she was mistaken.

What’s the real situation here? Unfortunately, a power of attorney is a power that stops working once the person for whom you hold that power, passes on. In other words, when her brother stopped living, the power of attorney also died at that same moment.

Similarly, a durable power of attorney for medical decisions does not survive the death of the person granting the power of attorney to another individual. (I have no idea if they had even executed that type of document.)

Now, my friend has even more to handle that she had anticipated. In addition to grieving the loss of a dear loved one, she has some unexpectedly complicated issues to resolve regarding the belongings and property her brother left behind after his death. We’ll check back in with her periodically to see how she is handling these issues.

Conclusion? I strongly recommend you DO NOT execute a power of attorney without a lawyer. There’s no substitute for an attorney’s independent judgment, drafting and research in this area of law.

As always, please note that this Blog doesn’t constitute legal advice in any way, shape or form and is not intended to create a client attorney relationship between any individual or company or not-for-profit and this law office.

Key words: “power of attorney”, death, dying, estate planning