by dengler
1. June 2009 07:02
Aside from flat out taking someones money because they are incompetent and driven to the bank, the first choice of the thief is the power of attorney. Power of attorneys are recognized in every state and there is little to no regulation of its use. In most states the only time it is recorded is when real estate is being transferred.
There should be extreme caution given by any professional who drafts a power of attorney. Care should be taken to truly understand not only if the signor is competent, but is the person being coerced even if subtly.
As a lawyer I have seen power of attorneys given to care givers who might have come into the elderly person's life because they were hired. The constant contact with the person presents an opportunity for the caretaker to overstep their role. This is yet another good reason why family members should chose a person who is a registered guardian. It is a far better course of action to choose a stranger who is trained and bonded then checking the inventory at death to find out all the assets were depleted.
The power of attorney most often survives incompetency if drafted within the last 20 years. It is true that there is plenty of case law indicating that a person can not use a power of attorney for their own benefit, but that self dealing is usually not detectecd or discovered too late.
As part of planning for the care of your mother or father or other person who seems unable to handle their own finances becasue of mental or physical reasons a good start is to ask if there are any power of attorneys out there and better yet send a notice of revocation to all the banks the perosn might be doing business with.
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