Posted by Ernest__CT on 1/13/12 4:57pm
Msg #408979

It cannot be repeated to the public too often: ...

... If a loved one is _beginning_ to have memory problems, get a Power of Attorney NOW.

Today I had to tell yet another family "I'm sorry; your mother's signature cannot be notarized. She is not, in my layman's opinion, oriented in time and space." They will have to go through Probate Court to get a family member appointed conservator. It is not a fun process, and it may take longer than the money lasts.

A Power of Attorney in the wrong hands is a license to steal. We must be sure that the person granting the PoA understands the ramifications of the PoA.

It is important that we, as Notaries Public, refrain from giving legal advice. Answering a question such as "Do you think I should ...?", no matter how we answer it, is _going_ to land us in trouble. We cannot decide for a (potential) signer whether they should grant Power of Attorney to a son or daughter, and especially not _which_ son or daughter!

If we suspect fraud, we must report it appropriately.

Reply by HisHughness on 1/13/12 5:01pm
Msg #408983

Because a POA is executed does not mean it has to be delivered. The advice is excellent: Get it done now. And if it makes the signer more comfortable, have them put it in a safe deposit box, and just tell the AIF that it exists, where it is, and how to get to it.

Reply by Ernest__CT on 1/13/12 5:10pm
Msg #408985

If a PoA is in a safe deposit box, ...

... then the Attorney-in-Fact (the person who receives the power) has to be able to open the safe deposit box in order to prove that they've got the Power.

It is unlikely that a bank would allow a safe deposit box to be opened to retrieve _anything_ without the person requesting that the box be opened already being authorized. Usually that means having a key and being on the list of people authorized to have access to the box.

I always caution people to make sure that they keep the original in a safe place. Inside two Zip-Lock bags (to keep moisture out) inside the freezer is the safest place. Even in case of fire, the freezer contents usually survive.

Reply by ReneeK_MI on 1/13/12 5:18pm
Msg #408988

When I do POA's ...

I always 'suggest' doing more than one original. One can be held by the AIF.

Reply by Linda_H/FL on 1/13/12 5:20pm
Msg #408990

The problem with that is that can be construed as

"delivery" of the POA, putting it into full force and effect...perhaps prematurely.

Reply by Ernest__CT on 1/13/12 5:23pm
Msg #408992

Unless a PoA has a specific start and end date, ...

... it goes into full force and effect when it is signed and continues in effect until it is revoked or the grantor dies.

Reply by HisHughness on 1/13/12 5:34pm
Msg #408997

Re: Unless a PoA has a specific start and end date, ...

Yes, it's effective, Ernest, but that doesn't mean it is available to be acted upon -- which it can't be, if it remains in the possession of the principle. The point about accessing the safe deposit box is a good one; I was thinking that the AIF could be one of those authorized entry. But that, of course, means that the POA is not in the sole constructive possession of the principle.

The freezer is a good idea. Just put a padlock on it, an automatically activated explosive charge, and a movement-actaivated siren that activates when there is movement within 15 feet.

Reply by Donna McDaniel on 1/13/12 5:55pm
Msg #409000

Re: If a PoA is in a safe deposit box, ...

I have a POA that my Mother signed naming me the AIF. She has Dementia but is still functional. It is in a safe deposit box in my two sister's names and I hold both keys. Together we will decide when it is needed.

Reply by Lee/AR on 1/13/12 7:13pm
Msg #409002

Excellent solution! n/m

Reply by Ernest__CT on 1/13/12 7:45pm
Msg #409006

Brava, brava! n/m

Reply by rengel/CA on 1/13/12 8:24pm
Msg #409011

Freezer is NOT a good idea

When my house burned, they would not let me open the freezer. They told us the smell will make you extremely ill.

So, the hundreds of $$ worth of meat I had just put in there was gone, gone, gone.

My .02

Reply by Linda_H/FL on 1/13/12 5:17pm
Msg #408987

And put the AIF's name on the safe deposit box too

or else he won't get into it to get his POA without a court order.

Reply by VT_Syrup on 1/14/12 10:54am
Msg #409033

Durable POA

I'm no lawyer. When my dad's memory problems became more serious, but he was still competent, we went to a lawyer and got a durable POA. An ordinary POA would become invalid when the signer becomes incompetent. A lawyer would also be able to advise on a mechanism to prevent the POA from being exercised prematurely.

Reply by ikando on 1/14/12 3:23pm
Msg #409058

Re: And put the AIF's name on the safe deposit box too

I suggest that too, Linda. Plus I suggest that the original be kept in the safe deposit box, with a copy where the AIF has access just in case they can't get to the box.