I’m Power Of Attorney. What Should I Do?
If you have agreed to act as someone's (the "Adult") attorney under an enduring power of attorney ("POA"), and you are not sure what you should do, here are a few tips:
1. Learn where important financial information is, and how the Adult would like you to manage their property when the Adult can no longer make those decisions themselves. Keep notes of important points or directions received.
2. Know where the original POA can be located should you need to use it. Make sure it is in a safe place.
3. Read the POA carefully. Ensure you understand what the POA says.
4. The Adult who appointed you POA is in charge so long as the Adult is capable of making decisions and expressing their wishes. You are responsible to comply with the Adult's known values and wishes.
5. When signing documents as POA you sign your own name and note next to or under your signature that you are "power of attorney for (Adult)".
6. A POA can only interfere with or contradict what the Adult is doing or has done if the Adult is incapable of acting in the Adult's own best interests. Be ready to step in when the Adult is not acting normally.
7. Occasionally check the Adult's financial records and investigate anything out of place or not "normal".
8. If there is no legally recognized health care representative for the Adult, the Adult's doctors, care home, care providers, and the hospital may recognize a POA for health care decisions.
9. Hire professional care givers to check on and care for the Adult if they are not able to care for themselves.
10. You should see and review the Adult's Will. A POA should not dispose of any property that is specifically gifted in the Adult's Will, unless the property must be sold to pay for the Adult's necessary living expenses.
11. If the Adult has a car, consider making arrangements to sell it, and ensure the car is properly stored, insured and not driven by anyone.
12. Always keep your money and property separate from the Adult's money and property.
13. Ensure the Adult's finances are managed well, that bills are paid, that tax returns are filed, and so on. Ensure excess funds are invested.
14. A POA is legally obligated to preserve the Adult's privacy and confidential information to only disclose it if required to make decisions for the Adult or as otherwise may be required by law.
15. Keep good and accurate written records of the Adult's finances and all the financial decisions that you make as POA.
16. If the Adult has made you a "joint owner" of their bank account or other property, make sure the Adult has confirmed in writing what is supposed to happen to the money in the account or the property when the Adult dies.
17. A POA cannot use the Adult's money to make gifts, donations, and loans to others, and especially to yourself unless the POA specifically provides for it. A POA cannot be used to receive or distribute early inheritance to others or to yourself.
18. You can reimburse yourself for any the Adult's living expenses you personally pay for from the Adult's money, but do keep receipts and records relating to this.
19. You can only get paid for your time acting as POA if the document allows for it. Regardless, keep accurate detailed records of your time and effort acting as POA.
20. Always ensure you are complying with your overarching legal duty to act honestly, in good faith, in the best interests of the Adult, and again keep records of what you do. This will help protect you from accusations of abuse of authority or carelessness.
21. If you are unsure of what you need to do, get legal advice.
Hopefully you've found this helpful. If you have any questions about what you should do as an attorney under a POA or if you are thinking about your own incapacity planning, contact us.