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Potential problems for those executing powers of attorney

On Behalf of | Oct 19, 2017 | Trustees Executors & Fiduciaries |

A loved one named you as the agent (also known as an attorney-in-fact) for his or her power of attorney (POA). Now the time has come for you to act on your designated responsibilities.

When the person is no longer able to take care of his or her affairs, this role is crucial. That’s why it’s essential to get an agent’s permission before you make that designation and ensure that they understand the responsibilities involved.

Agents named in POAs can have different scopes of responsibility. They may only be responsible for health care or financial decisions, or may be limited to only making real estate transactions. Some agents are responsible for a wide variety of matters.

It’s important for those creating the POAs to try to avoid potential obstacles for the agents who need to exercise the authority they’ve been granted. Third parties aren’t required to accept that person or entity as a valid agent. Below are some common reasons why they may not be accepted.

The POA is too old

When it’s been some time since the POA was executed, banks, brokerages and other companies may be concerned that a newer one exists. Often, they won’t honor a POA that was executed more than five years prior. Some title companies require a POA no older than six months. Agents may also be asked by a third party to sign an affidavit stipulating that they aren’t aware of any termination of the POA or of their authority.

The POA wasn’t properly executed

In California, POAs have to be signed by the person who delegated the authority (the principal). This signature must be done in front of a notary public or two adults with no stake in the POA. If a POA involves property, the assessor’s parcel number and legal description must be included, and a specific description of the agent’s powers should be included, e.g., that they have the right to buy, sell, rent the property, etc.

California law allows third parties to “require the attorney-in-fact to provide identification, specimens of the signatures . . . and any other information reasonably necessary or appropriate to identify the principal and the attorney-in-fact.” However, they must have a good faith reason for not letting an agent carry out a POA. The agent can take the matter to court to compel that party to honor the document.If you have questions or issues involving the authority you’ve been granted by a POA, an experienced California estate planning attorney can provide assistance.

Source: Lake County News, “Estate Planning: Acceptance of powers of attorney,” Dennis Fordham, Oct. 07, 2017