Click here for Part 2: Over the Counter Divorces

When I went to waste money buy the first packet – Over the Counter Wills kit – I also picked up a General Power of Attorney kit made by the same people. It cost me about $10.00 and when I opened it just now, there were actually 3 Power of Attorneys (POA) in there. 3 for the price of 1 – again! They give great deals apparently.

Their POA is 3 pages in total. My POA that I draft for my clients are 8 pages. Maybe I just ramble too much (or maybe their POA is leaving out 5 pages of good legal material).

There are 15 spaces, all lined up, for you to put your initials next to. If you want to grant the power holder these specific powers, you must initial next to each power. If you don’t want your power holder to have those powers, you cross out the line and don’t initial next to it. This looks an awful lot like a New York POA Short Form. Here in Massachusetts, we don’t use a short form of our POA like New York residents can, but I guess this company didn’t know that.

These 15 or so powers don’t really have a description of the powers either. It simply says for example, “Real estate transactions” or “Banking transactions”. Those look like headings of my POA rather than the actual legal text of it. Specificity is the key to good legal drafting and “Banking transactions” is not nearly as specific as

To open and close accounts, make, receive, and endorse checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations, and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted;

which is the exact language of the POAs that I write for my clients.

Here in Massachusetts, I have witnessed many financial institutions that are very nit-picky about anyone coming into their bank with a POA. They don’t like it and they don’t trust it. And quite frankly, they have a right and duty to be skeptical. A POA gives the power holder extremely broad powers and authority. As such, I have seen banks refuse to accept a POA that is many years old; or one that is ripped; or one that had multiple staples on it; etc. How do you think a bank or other financial institution will treat a $10.00 POA if presented with one here in Massachusetts that was clearly not drafted by an attorney?

One of the good things about their POA is that it includes an incapacity clause that allows the POA to stay in effect, even if you were to become incapacitated (which really is the main purpose of a Durable General Power of Attorney after all). However, the bad thing about their POA is that you must specifically initial next to it in order for the power to be granted.

But the main problem with all these cheap, over the counter, legal forms is not their substance (although it lacks a lot of be desired). The main problem really is that they expect the consumer to know exactly what it is they need. Notice that I didn’t say “want.” Because I have found that many of my clients come to me to ask me for what they want and my job as their attorney is to tell them what they need.

These forms will never substitute for good legal advice. It will never substitute for the thought and insight and individualized planning that an estate planning attorney will give to their clients. It will however, give you 3 cheap (and possibly useless) power of attorneys for the price of 2 happy meals. Enjoy!

The article recounts the story of Bob and Dorothy who met each other at an assisted living community. Just as the title says, they fell in love and started to have sexual relations. Bob’s son, who was appointed Bob’s guardian (either through a court guardianship procedure or health care proxy), decided to put a stop to the relationship after walking in on his father and his new girlfriend having sex at the assisted living center.

If you read through the article, an interesting concept of a Sexual Power of Attorney comes up. Dorothy’s daughter, who is an attorney, comments (maybe facetiously) that a Sexual Power of Attorney might allow the elderly to control their own sexual experiences when they reach a point of dementia. I’m not sure how this sort of power of attorney would work and how you would designate a person to oversee your sexual future. The concept however, is very interesting.

As I have said in previous posts, you should always designate someone to be your attorney-in-fact or proxy who you would trust your life with. You need to trust this person not only to keep you alive when you’re in a vegetative state or to pay your health care bills when you’re incapacitated, but you also need to know that this person’s values and beliefs are in line with your own. You need to be able to trust this person to make the same decisions you would make, or at least follow your intent and look out for your best interest. I’m not sure Bob’s son in the article was looking out for his father’s best interest. It seemed he was either trying to safe-guard his inheritance or to keep his father alive but lifeless to satisfy his own need to keep his father around. Sometimes immediate family members are not the best people to designate for such important roles.

Many people know of POAs but are confused about the different types and their uses. As part of a comprehensive estate plan for anyone over the age of 18, I recommend a Durable POA as oppose to a Springing POA. A Durable POA is exactly as the name says. It is durable which means that it becomes effective immediately upon you creating the document and survives and stays effective even if you were to become incapacitated. This is very useful when planning for incapacity. While you are healthy and of sound mind, you can chose any person that you trust to serve as your attorney-in-fact in the event that you become incapacitated (either a coma or vegetative state). A Springing POA on the other hand does not become effective when you create the document. Rather, it “springs” to life only upon a certain event that’s designated in the POA, most often, it is your incapacity. So in theory, if you were to be in a coma or in a vegetative state, your attorney-in-fact will then, and only then, have the power to speak and act on your behalf.

Many people ask me about Springing POAs and why I don’t recommend them. They’re mostly afraid that if they create a Durable POA, their attorney-in-fact will abuse the privilege and use it inappropriately even when they’re not incapacitated. First and foremost, you should only appoint an attorney-in-fact that you trust wholeheartedly with your life. If you have any doubts about a person, then that person should not be appointed your attorney-in-fact for any situation. Once your attorney-in-fact does something in your name, it is your responsibility and your name that attaches to that event. Secondly, a Durable POA is always effective, which means that upon your incapacity, there needn’t be any question whether the POA is effective upon your incapacity because it is always effective. A springing POA usually springs to life only upon incapacity which begs the question, who decides when you’re incapacitated? There are provisions you can put in the POA to say that your incapacity must be certified by two or more doctors, but then it places the burden on your doctors and some either will not certify it fearing a violation of HIPAA or get wrapped up in your finances without a court order. This leads to your appointed attorney-in-fact to go to the courts in order to be allowed to use the POA. In an emergency, this defeats the whole purpose of having a POA.

Ultimately, I recommend and prefer the Durable POA over the Springing POA. The issue still remains for some people with their concern that they do not want someone to be able to speak on their behalf while they have capacity. In that case, I recommend that you execute the Durable POA but simply not hand one over to your designated attorney-in-fact. Simply let your attorney-in-fact know where it is placed in your house, allow them access to your house, and tell them that if you were to become incapacitated to fetch it and use it. Never store your POA in a safe deposit box because a bank will not allow another person to enter a safe deposit box without a POA, the very instrument that’s hidden inside the box. Keep the POA in a safe place that’s within your control and that should solve both the issue of having a POA that will work when it’s suppose to and not giving your attorney-in-fact the power to act on your behalf while you still have capacity.