What is the law on....: April 2012

Saturday, April 28, 2012

Can I Change or Terminate my Power of Attorney?

Can I Change or Terminate my Power of Attorney?

Yes. You can change or terminate (also called revoke) your power of attorney at any time, for any reason, or for no reason at all. For example, you can change your agent or his or her authority. Revoking your power of attorney terminates your agent’s authority.

Changes to your power of attorney require either a new power of attorney or an amendment to your existing power of attorney. The new power of attorney or the amendment must be executed the same way as described in the earlier post “How Do I Give a Power of Attorney.”

Terminating or revoking your power of attorney is usually done by you giving written notice to your agent that your power of attorney is revoked; or by making a new power of attorney that specifically says it revokes your prior power of attorney. There are other events that could terminate your power of attorney. These are discussed in detail in a later post titled “When does my Power of Attorney Stop?”

You should immediately notify your agent of any change or termination of your power of attorney. Until then, your agent can bind you unless the person or business dealing with your agent has actual knowledge of the change or termination or is acting in bad faith.

Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com if you want to change or revoke your power of attorney, or if you are an agent who thinks your authority may have been changed or revoked.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

This post is exclusively for informational purposes. It is not legal advice. Viewing this post, using information from it, or communicating through this blog does not create an attorney-client relationship. Thomas T. Tornow, P.C. is not liable for the use or interpretation of information on this blog and expressly disclaims all liability for any actions you may or may not take based on the content of this blog.

Can I Have More than One Agent or Power of Attorney?

Can I Have More than One Agent or Power of Attorney?

Yes, you can have more than one agent. This can result from your power of attorney naming more than one agent or you giving more than one power of attorney. For example, you might want to appoint an agent with financial experience to make business decisions for you; and a different agent with medical knowledge to make health care decisions for you. If you have more than one agent, they are called co-agents.

Unless your power of attorney says otherwise, your co-agents can act independently for you without the knowledge or consent of the other co-agents.

Your co-agents can have completely different authority, the exact same authority or authority that is not identical, but overlaps. Before you give your co-agents identical or overlapping authority, you should consider the consequences if your co-agents disagree. Avoid the temptation to require your co-agents to agree on all matters. Instead, provide a clear method in the power of attorney for how such disagreements will be resolved. For example, if you make more than one child your co-agent to make home care decisions for you, you should provide for how that decision will be made if they disagree. Otherwise, the disagreement may generate a family feud and law suits. For advice on how to resolve disagreements between co-agents, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

Who Should be My Agent in My Power of Attorney?

Who Should be My Agent in My Power of Attorney?

Only you can decide who should be your agent. Your agent does not need to be a relative.

Although the Uniform Power of Attorney Act says “anyone” can be an agent, it is questionable whether someone under 18 years old, or incompetent to enter into a contract, could be an agent under a power of attorney. It would certainly be unwise for you to appoint such a person.

An act performed by your agent under your power of attorney binds you the same as if you performed the act yourself. So it is important that your agent be someone you trust to act honestly, carry out your wishes, and act only in your best interest. It is advisable that your agent know about finances in general and your specific finances and affairs. You might want to appoint one agent for business decisions and a different agent for your health care decisions. Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com for a power of attorney or change your agent.

You cannot appoint someone as your agent without their consent. It is important to ask the person whether (s)he is willing to be your agent under your power of attorney. Because your agent is liable if (s)he violates the power of attorney, his/her fiduciary duties, or the law regarding powers of attorney, the person you ask to be your agent should contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com to discuss the important responsibilities and duties (s)he is undertaking.

Although not required, your power of attorney should name one or more people (called a successor agent) who will take over your agent’s duties if your agent resigns, dies, becomes incapacitated, is not qualified or declines to be an agent. Alternatively, your power of attorney can name a person to appoint your successor agent(s) for you.

Your power of attorney can also name who you want as your guardian or conservator should that become necessary. It can be your agent or someone else. A judge is required to honor your choice unless there is good reason to the contrary, or the person you named is not legally qualified to be a guardian or conservator.

The person agrees to be your agent or successor agent by any statement or conduct indicating acceptance, including exercising authority or performing duties as your agent under your power of attorney.

If you want to appoint or change your agent, successor agent, guardian or conservator, contact Thomas T. Tornow, P. C. at http://www.tornowlaw.com. If you have been asked to be an agent, successor agent, guardian or conservator, contact Thomas T. Tornow, P. C. at http://www.tornowlaw.com to learn your responsibilities if you accept.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

How Do I Give Someone a Power of Attorney?

How Do I Give Someone a Power of Attorney?

To give a power of attorney, you must be over 18 years old and competent to enter into a contract. You are competent to enter into a contract unless you are of unsound mind or have been deprived of your civil rights.

Your power of attorney must be in writing. It must identify your agent(s). It must either be signed by you or by another person who signs your name at your direction, in your presence, when you are conscious. It is advisable, but not required, that your signature be notarized.

You can give more than one power of attorney. Giving more than one power of attorney does not automatically terminate a prior power of attorney. However, powers of attorney often contain a clause saying that you are revoking or terminating all other powers of attorney. If you want to have more than one power of attorney in effect at the same time, you need to make sure that none of them have that clause.

Your powers of attorney may be for different subjects. You may want to give one agent a power of attorney for health care decisions and another agent a power of attorney for financial matters.

You can also give more than one power of attorney to different agents for the same subject; or give one power of attorney that names more than one agent. These are called co-agents. A co-agent is different than a successor agent (discussed in a later post). Co-agents are authorized to act for you during the same time period. A successor agent is authorized to act for you only if your former agent can no longer act for you.

Unless your power of attorney specifies otherwise, the agent named in each power of attorney, or co-agents named in the same power of attorney, can act independently for you without the knowledge or consent of the other agent(s) or co-agents.

If your agents or co-agents have overlapping authority, you should consider the consequences if they agents disagree and provide a clear method in the power of attorney for how such disagreements will be resolved. For example, if you give each of your children a power of attorney, or name more than one child as co-agents, to make home care decisions for you, you should provide for how that decision will be made if the children disagree. Otherwise, the disagreement may generate a family feud and law suits for resolving disagreements between co-agents.

If you need a power of attorney or want your power of attorney updated, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

Do I Need a Durable Power of Attorney if I Have a Trust?

Do I Need a Durable Power of Attorney if I Have a Trust?

Yes, you should have a durable power of attorney even if you have a trust, including a living trust. People often forget to transfer some of their assets into the trust or acquire assets in their own name after the trust is established. If you have a properly prepared durable power of attorney, your agent may be able to transfer those assets into your trust if you are not able to do so due to illness or incapacity. This could avoid probating your estate. The power of attorney can also allow your agent to handle transactions for you that are not covered by the trust documents, such as filing tax returns and contracting for your medical and home care. Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com to get a durable power of attorney or to make sure your power of attorney will work with your trust.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

Do I Need a Durable Power of Attorney if I Have a Will?

Do I Need a Durable Power of Attorney if I Have a Will?

Yes, you should have a durable power of attorney even if you have a Will. A Will takes effect only when you die. Your power of attorney allows your agent to handle matters when you are alive. With current medical technology, there can be a very long period of time between when you may not be able to handle your affairs and when your Will takes effect. Having a durable power of attorney allows your agent to handle your affairs during this period, probably without a conservator or guardian. To get a durable power of attorney or to make sure your power of attorney is durable, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

Should I have a Durable Power of Attorney?

Should I have a Durable Power of Attorney?

Yes. Everyone should have a durable power of attorney. A durable power of attorney is an important part of planning your estate. If it is properly prepared and executed, a durable power of attorney is a low-cost and private alternative to the costly and lengthy court process of appointing a guardian or conservator.

If you become incapacitated without a durable power of attorney, your family may have to ask a judge appoint a guardian or conservator for you. A guardian takes care of you personally. Your conservator takes care of your financial affairs. If you have questions about a guardian or conservator, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Appointing a guardian or conservator is a lengthy and costly process that is usually paid for from your assets. It requires filing a case in court and one or more hearings before a judge. The person filing the case, that person’s attorney, your attorney, and perhaps other witnesses, are all required to be at the court hearing. The judge will appoint another person (called a visitor) to meet with you and report to the judge. The judge will probably require you to be examined by one or more doctors who report to the judge. The guardian or conservator is paid from your assets. The judge usually requires the guardian or conservator to inventory your assets and make periodic reports. The hearings, inventory and reports usually open to the public.

If you have a durable power of attorney, a conservator or guardian may not be necessary because your agent can handle your affairs privately. There would be no court case or reports to a judge. No one would be prying into your affairs and your medical condition, assets and other information would not become public records.

If a conservator or guardian is still necessary, and if your power of attorney names who you want as your guardian or conservator, the judge is required to appoint that person. Otherwise, the judge, rather than you, chooses the guardian or conservator and sets the scope of his or her authority.

Appointing a guardian or conservator adds to the stress of your loved ones during an already difficult time. All this can be avoided if you have a properly prepared durable power of attorney. To get a durable power of attorney or to make sure your power of attorney protects you and your family, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

Why Would I Want to Give Someone a Power of Attorney?

Why Would I Want to Give Someone a Power of Attorney?

There are many reasons to make a power of attorney. For example, you might want your agent to be able to:

• handle a specific transaction for you, such as purchasing real estate;

• care for and make decisions regarding your child;

• handle all or some of your affairs while you are gone; or

• make financial or health decisions if you become disabled.

To obtain a power of attorney, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

Monday, April 23, 2012

What is a Power of Attorney

What is a Power of Attorney?

A power of attorney is a written document by which you (called the principal) appoint one or more individuals or businesses (called agents) to act on your behalf. An agent is also sometimes called an attorney-in-fact.

Your agent “stands in your shoes.” This means any act by your agent pursuant to your power of attorney binds you the same way as if you did the act yourself.

While a power of attorney does not need to be prepared by a lawyer, it is recommended that a lawyer prepare, or at a minimum review, your power of attorney to make sure it complies with the law, reflects your specific intentions, and protects you and your family. It is also advisable to annually review your power of attorney with a lawyer to determine if it needs to be updated. Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com to obtain a power of attorney or have your current power of attorney reviewed.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

What is the Uniform Power of Attorney Act?

What is the Uniform Power of Attorney Act?

The Uniform Power of Attorney Act has been adopted by all States except Louisiana. The Act is intended to make the law concerning powers of attorney uniform from State to State. It specifies how a power of attorney is created and provides safeguards for the principal, agent and entities relying on a power of attorney. Some States may have modified some provisions of the Act, and case law may vary between States, so it is important that you consult an attorney familiar with the law in your State. Nevertheless, most of what follows is applicable to States other than Montana. If you have questions about your power of attorney, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

When Does the Act Apply?

The Act applies to powers of attorney signed after the date your State adopted the Act. Montana enacted the Act on October 1, 2011. It applies to powers of attorney signed in your State or that expressly provide that your State's law is to be used to interpret the power of attorney or the agent’s powers.

A power of attorney that was valid before your State adopted the Act is still valid under the new law. A power of attorney signed and valid in another State and a valid military power of attorney are valid in your State. Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com to have your power of attorney reviewed by to insure it meets your present and future needs.

The Act expressly provides that it does not override other laws applicable to financial institutions or other entities; nor do the remedies under the Act exclude any other remedy available at law or in equity. If you have any questions about how your power of attorney applies to financial institutions, other businesses or your remedies at law or in equity, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

Saturday, April 7, 2012

Introduction to Powers of Attorney

POWERS OF ATTORNEY

Introduction

A power of attorney is a written document by which you appoint one or more individuals or businesses to act on your behalf. A durable power of attorney is an important part of your estate package. A durable power of attorney maintains your privacy and avoids the costly and lengthy court process of appointing a guardian or conservator if you become incapacitated. You should make a durable power of attorney so someone you trust can handle your affairs if you become incapacitated. You can also give a power of attorney so someone can act for you even if you are not incapacitated. If you have questions about, or want a power of attorney, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

These posts give you a comprehensive overview of powers of attorney. They answer questions like:

• What is the Uniform Power of Attorney Act?

• When Does the Act Apply?

• What is a Power of Attorney?

• Why Would I Want to Give Someone a Power of Attorney?

• Should I have a Durable Power of Attorney?

• Do I Need a Durable Power of Attorney if I Have a Will?

• Do I Need a Durable Power of Attorney if I Have a Trust?

• How Do I Give a Power of Attorney?

• Who Should be My Agent?

• Can I Have More than One Agent?

• Can I Change or Terminate my Power of Attorney?

• What are My Agent’s Obligations?

• What Powers Can I Give My Agent?

• When Does My Power of Attorney Start?

• When Does My Power of Attorney Stop?

• How Does My Agent Use My Power of Attorney?

• What if I Become Incapacitated?

• What if My Agent Breaches His Duty to Me?

The author, Thomas T. Tornow is a lawyer in Whitefish, Montana and President of Thomas T. Tornow, P.C. He has over 33 years of experience helping clients with Powers of Attorney, Wills, Living Trusts and other estate planning tools, as well as probating their estate. After reviewing these posts, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com to:

· Make a durable power of attorney so someone you trust can handle your affairs if you become incapacitated.

· Make a durable power of attorney so someone can act for you in other matters even if you are not incapacitated.

· Review your power of attorney to insure it complies with Montana law.

· Update your power of attorney to insure it reflects your specific intentions for your financial and family situation.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow