What is the law on....

Friday, June 1, 2012

How Does My Agent Use My Power of Attorney?

How Does My Agent Use My Power of Attorney?

Your agent should keep the original of your power of attorney. You should keep a copy. Unless a statute requires an original, a photocopy or electronically transmitted copy of your power of attorney has the same legal effect as the original. Nevertheless, your agent may be asked to show the original. A business or person being asked to accept your agent’s authority may want to copy your power of attorney. Under the Uniform Power of Attorney Act, your agent can also give the business or person a written certification of the validity of your power of attorney and of his or her authority to act on your behalf.

Your agent has the authority to act for you in dealings with other persons or businesses. It is important that your power of attorney clearly identify what matters your agent can handle for you (this is called the agent’s scope of authority). Your agent has the power to bind you on matters with the scope of his or her authority just as if you did the act yourself. A business, person or entity acting in good faith can legally rely on your power of attorney unless they know that your agent is not authorized to act for you. For example, they may know that your power of attorney has been terminated or that your agent does not have the authority for the transaction.

It is very important that your agent discloses to the other person or business that (s)he is acting for you and not for him or herself. Otherwise, your agent may be personally liable to the person or business or entity. When your agent signs for you, (s)he agent should write or print your name, then sign his or her name and disclose that (s)he is signing as your agent. For example: “John Smith, by Sally Smith, his Agent” or "Sally Smith, signing as agent for John Smith and not individually."

If your power of attorney is properly prepared and notarized, someone doing business in a State that has adopted the Uniform Power of Attorney Act cannot require an additional or different power of attorney. The person, business or entity is legally required to accept and honor your power of attorney within 7 business days unless it:

(1) Would have no requirement to engage in the transaction with you directly;

(2) Knows your power of attorney has terminated or been revoked;

(3) Believes in good faith belief that your power of attorney is invalid;

(4) Believes your agent does not have the authority to perform the specific act or transaction;

(5) Believes engaging in the transaction with either you or your agent would violate Federal law; or

(6) Knows that someone has reported to the Department of Health and Human Services that your agent, or someone acting for or with your agent, may be physically or financially abusing, neglecting, exploiting or abandoning you.

The person, business or entity can also ask your agent to certify in writing that your power of attorney is valid and that (s)he has authority for the transaction. The business or entity can rely on that certification without further investigation and must accept your power of attorney within 5 business days after it receives the certification. If they do not, you or your agent can obtain a judge's order requiring them to accept your power of attorney and the person, business or entity is liable for your and/or your agent's attorney's fees and costs.

The person, business or entity can refuse to accept your notarized power of attorney unless you provide an English translation of your power of attorney or an opinion of a lawyer on any legal question about the power of attorney. The request for an attorney’s opinion must be in writing and give a reason for requesting the opinion. If the person, business or entity makes the request within 7 business days of receiving the power of attorney, you bear the expense of providing the translation or opinion. If the person, business or entity makes the request after 7 business days, they bear the expense. The person, business or entity can rely on the translation or opinion without further investigation and must accept your power of attorney within 5 business days of receiving the translation or opinion.

Thomas T. Tornow has 33 years of experience helping people with their powers of attorney. Contact his office at www.tornowlaw.com to schedule your free consultation.

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.

When Does My Agent's Authority Stop?

When Does My Agent's Authority Stop?

Your agent’s authority under your power of attorney stops when your power of attorney is terminated. Your power of attorney should specify when it or your agent’s authority is terminated. Even then, you can terminate your agent’s authority by revoking your power of attorney at any time for any or no reason. This is usually done by you writing your agent.

Your agent’s authority also stops if your agent resigns. Your agent can resign at any time for any or no reason. Unless your power of attorney requires a different way of resigning, this is done by your agent notifying you, preferably in writing, that (s)he has resigned. If you are incapacitated, the notice may be given to your conservator, guardian, co-agent or successor agent. If none of those exist, the notice may be given to your care giver or another person your agent believes has sufficient interest in your welfare or a government agency with authority to protect your welfare.

Your power of attorney and your agent’s authority automatically terminates when you die.

The former law in most States was that unless your power of attorney specifically provided otherwise, your power of attorney and your agent’s authority terminated if you became incapacitated. Under the Uniform Power of Attorney Act, it is just the opposite. Now, unless your power of attorney specifically provides otherwise, your agent’s authority does not terminate when you become incapacitated. If your power of attorney does not terminate when you become incapacitated, is called a durable power of attorney. It is important for you to give a durable power of attorney, and a durable health care power of attorney, to someone so that person can handle your affairs if you are no longer able to do so because of an accident, illness or disability.

If your power of attorney specifically provides that it terminates and your agent’s authority ends when you become incapacitated, the termination is not effective unless your agent, or the person dealing with your agent in good faith, has actual knowledge of your incapacity.

Your power of attorney can provide that it your agent’s authority stops when a specific event happens. For example, your power of attorney could provide that your agent’s authority ends when you return to the United States.

If your power of attorney is given for a specific purpose, unless it provides otherwise, your agent’s authority ends when that purpose is accomplished. For example, if you give a power of attorney to sell a specific car, your agent’s authority ends when the car is sold.

Your power of attorney also terminates if all your agents named in the power of attorney die, resign or become incapacitated. That is the reason your power of attorney should name one or more successor agents.

Unless your power of attorney provides otherwise, it terminates and your agent’s authority ends if you and your agent divorce, have your marriage annulled or legally separate.

Signing a power of attorney does not automatically terminate revoke your prior powers of attorney or end your other agent’s authority unless the new power of attorney provides that all or specific powers of attorney you have given are revoked.

Unless a judge limits, suspends or terminates your agent's authority, your power of attorney and your agent’s authority remain in effect even after the judge appoints a guardian or conservator for you. Your agent owes your guardian and conservator the same duties that your agent owes to you.

Your agent must immediately stop acting for you when (s)he learns that your power of attorney has been terminated.

It is important for you to let anyone dealing with your agent, like your bank, know that your agent has resigned, his or her authority has ended, or your power of attorney has been terminated. Otherwise, you remain bound by your agent's dealings with persons or entities that do not know that your agent has resigned, his or her authority has ended, or your power of attorney has been terminated.

Thomas T. Tornow has 33 years of experience helping people with their powers of attorney. Contact his office at www.tornowlaw.com to schedule your free consultation.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

When Does My Agent's Authority Start?

When Does My Agent's Authority Start?

Your power of attorney should specify when the authority you give your agent starts. If your power of attorney does not specify when your agent’s authority starts, then his/her authority starts when you sign your power of attorney. People often give their spouse or domestic partner a power of attorney that starts immediately.

Your power of attorney can provide that your agent’s authority starts on a specific date or when a specific event occurs. This is called a springing power of attorney. An example of a springing power of attorney is one that becomes effective only if you are incompetent to handle your own affairs. You are incompetent to handle your own affairs if you have:

A. An impairment in your ability to manage your property or business affairs;

B. An impairment in your ability to make or communicate decisions even with the use of technological assistance;

C. If you are missing; or

D. Outside the United States and unable to return.

Your springing power of attorney should name one or more persons (other than your agent) who are authorized to determine in writing whether the specific event has occurred. If the specific event is that you are incompetent, that person has the right to access your health and Social Security records and to communicate with your health care provider. If you do not name anyone, then your power of attorney becomes effective when a physician says in writing that A or B above exists or an attorney or judge says in writing that C or D above exists.

Thomas T. Tornow has 33 years of experience helping people with their powers of attorney. Contact his office at www.tornowlaw.com to schedule your free consultation.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

Sunday, May 6, 2012

What if there are Questions About my Agent's Authority?

What if there are Questions About my Agent's Authority?

Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com if you:

· have a question about your agent's authority;

· are an agent and have questions about your authority; or

· are doing business with an agent and have a question about the agent's authority.

He will review the power of attorney and answer your questions about the agent's authority.

Alternatively, any interested person can ask a district court judge to interpret or clarify a power of attorney. An interested person includes:

• the person who gave the power of attorney (known as the principal);

• the agent;

• a person asked to accept a power of attorney;

• the principal's spouse, parent, child, guardian, conservator, care giver, fiduciary, descendent or presumptive heir;

• a person authorized to make health care decisions for the principal;

• someone who demonstrates sufficient interest in the principal's welfare;

• a beneficiary of the principal's estate or trust; and

• a government agency with authority to protect the principal's welfare.

However, the judge cannot interpret or clarify the power of attorney over the principal's objection unless the agent is asking for the clarification or interpretation or the judge finds that that the principal lacks the capacity to revoke the power of attorney or the agent's authority. If you want an interpretation or clarification of a power of attorney, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

What Authority Can I Give My Agent?

What Authority Can I Give My Agent?

It is important that your power of attorney clearly identify what matters your agent can handle for you (this is called the agent’s scope of authority). Your agent has the power to bind you on matters with the scope of his or her authority just as if you had done the act yourself. If you a have a question about what authority you have given to your agent, or if you want to change that authority, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Your power of attorney can give your agent the authority to do almost everything you can do, including:

· paying your bills;

· dealing with your real estate, tangible personal property, investments, insurance, annuities, estates, trusts, and beneficial interests;

· signing, performing, rescinding, canceling, reforming or modifying contracts;

· preparing, executing, acknowledging, filing and recording instruments and communications for you;

· dealing with your banks and other financial institutions;

· filing and settling claims and lawsuits for you;

· preparing your tax returns and paying your taxes;

· handling your retirement plan and government, military or civil benefits;

· paying family maintenance;

· arranging your home care;

· creating a schedule listing some or all of your property and attaching it to your power of attorney;

· communicating with and seeking assistance from any court or government agency;

· hiring, paying and firing your attorney, accountant, investment manager, expert witness or other advisor;

· accessing communications to you and communicate for you; and

· doing any other lawful act on your behalf.

Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com to be sure your power of attorney clearly identifies you agent’s authority.

Unless your power of attorney provides otherwise, your agent has authority over your property anywhere in the United States, regardless of when it was acquired. If you have questions about your agent’s authority over your property, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Your power of attorney can also limit your agent’s authority. A common limit is that your agent can act for you only if you are no longer able to do so. Not being able to act for yourself is called being incapacitated. What qualifies as being incapacitated, who can make that determination, and the consequences are discussed in a later post. Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com if you want to limit your agent's authority.

If you give your agent limited authority, your agent can only do the things described in your power of attorney. Ambiguities in your power of attorney are construed against you and in favor of your agent or those dealing with your agent. Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com if you have questions about the limitations on your agent’s authority.

Unless your power of attorney specifically says otherwise, your agent cannot usually:

• transfer your power of attorney to another person;

• give another person a power of attorney to act for you;

• create, amend, revoke or terminate your living trust;

• make a gift for in your name;

• create or change your right of survivorship or beneficiary designation;

• waive your rights as the beneficiary of a joint or survivor annuity or retirement plan;

• disclaim any property, including a power of appointment;

• transfer your property to him or herself or someone (s)he has a duty to support unless your agent is your spouse, decedent (e.g. child) or ancestor (e.g. parent); or

• make health care decisions for you.

If you want your agent to be able to do any of these things, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Regardless of what your power of attorney says, your agent cannot make your Last Will and Testament, represent you in court (unless your agent is a lawyer), or deal you’re your Social Security benefit. Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com if you want help with these matters.

Your power of attorney can require your agent to have the consent of your other agents. Otherwise, your agents can act independently for you without the knowledge or consent of your other agents. If your agents or co-agents have overlapping authority, you should consider the consequences if they 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, with the same or overlapping authority, 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. Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com for suggestions on how to prevent disagreements between your agents.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

Wednesday, May 2, 2012

Does my Agent Get Paid?

Does my Agent Get Paid?

Unless your power of attorney provides otherwise, your agent is entitled to be reimbursed for expenses incurred on your behalf and paid a reasonable amount for his or her time. A good measure of what is reasonable is what you would have to pay someone else for those services. These amounts are either paid by you or your agent can pay him or herself from your funds. Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com if you have questions about payments to agents.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

What are my Agent’s Obligations?

What are my Agent’s Obligations?

Your agent has special legal duties. These are called fiduciary duties. A fiduciary duty is the highest duty known in the law. Your agent owes these fiduciary duties to you. Your agent also owes these same duties to your guardian and conservator.

Your agent has a fiduciary duty to act only within the powers you give in your power of attorney. (S)he must follow your instructions and expectations. When in doubt about your expectations, your agent must act in your best interest. Your agent must be loyal to you and act in good faith, with care, competence and diligence. If you select your agent because of his or her special skills or expertise, those skills and expertise are considered in determining whether your agent acted with care, competence and diligence. For example, if your agent is an attorney, (s)he will be held to the standard of care, competence and diligence for an attorney as opposed to the standard for an agent with no legal education and experience. Your agent must cooperate with your other agents, including your agent for health care decisions, and try to implement your estate plan if it is in your best interest. If you think your agent may have violated these duties, or if you are an agent and need advice on your duties, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Your agent must carry out his or her duties for your benefit only. Transactions by your agent that benefit your agent (called self-dealing) are presumed improper. However, if your agent acts in your best interest with care, competence and diligence, then (s)he is not liable solely because:

· (S)he also benefits from the transaction;

· (S)he has an individual or conflicting interest in relation to your property or affairs; or

· The value of your property or estate declines.

Nevertheless, your agent must avoid any conflict of interest that would impair his or her ability to act in your best interest. If you think your agent may have engaged in self-dealing or you are an agent concerned about a potential conflict of interest, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Your agent must keep a record of all receipts, expenditures and transactions made for you. Contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com for help with these records.

Your agent must inform you if (s)he knows that your co-agent has violated, or is about to violate, the co-agent’s fiduciary duty to you. Likewise, your successor agent must inform you if (s)he knows that your former agent violated his or her duty to you. Other than these obligations of disclosure, your successor agent or co-agents are not liable for a breach of duty by your other agents unless they participated in the breach. If you think your co-agent or former agent violated their duty, or you are an agent concerned about another agent’s actions, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Unless it is expressly permitted in your power of attorney, your agent cannot delegate his or her duties to another person or business. You should be very cautious about allowing delegation. If you think delegation may be necessary, you should specify in your power of attorney exactly what powers, and under what circumstances, your agent can delegate and to whom they can be delegated. If your power of attorney allows delegation, your agent is not liable for the act, error of judgment or default of the person or business (s)he delegates to unless your agent did not exercise care, competence and diligence in selecting the person or business. If you select your agent because of his or her special skills or expertise, those skills and expertise are considered in determining whether your agent acted with care, competence and diligence in selecting the person or business. For example, if your agent is an accountant, (s)he will be held to the standard of care, competence and diligence that an accountant should use in selecting the person or business. Before allowing your agent to delegate his or her powers, get advice by contacting Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Although not advisable, your power of attorney can provide that your agent is not liable for breaching these duties. However, such a provision will not protect your agent if:

· The provision is the result of your agent abusing his or her confidential or fiduciary relationship with you; or

· Your agent acted dishonestly, with an improper motive, or with reckless indifference to your best interest or the purpose of your power of attorney.

Don’t exempt your agent from liability for breaching his or her duties without getting advice from Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

When dealing with others on your behalf, your agent should always disclose that (s)he is acting for you and not for him or herself. This prevents your agent being personably liable for the debt or action. When signing documents, your agent should write or print your name, then sign his or her name and disclose that (s)he is signing as your agent. For example: “John Smith, by Sally Smith, his Agent” or "Sally Smith, signing as agent for John Smith." If you are unsure how something should be signed, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Unless your power of attorney provides otherwise, your agent is not required to account for his or her activities unless the information is:

• Requested by you;

• Ordered by a judge;

• Requested by your guardian, conservator or another of your fiduciaries (such as a co-agent);

• Requested by a government agency with authority to protect your welfare; or,

• Requested by your executor, personal representative or successor to your estate after your death.

In those situations, your agent must provide the information within 30 days, or if your agent documents in writing why (s)he needs additional time, within 60 days. If you are an agent who has been asked to account for your activities, or you want an accounting from your agent, contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Your agent must immediately stop acting for you as soon as (s)he knows that your power of attorney has been terminated or revoked. If they do not, immediately contact Thomas T. Tornow, P.C. at http://www.tornowlaw.com.

Because an agent may be liable for violating a power of attorney, his/her fiduciary duties, or the law regarding powers of attorney, anyone asked to be an agent under a power of attorney should consult with Thomas T. Tornow, P.C. at http://www.tornowlaw.com about his or her important responsibilities and duties.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow