Working with and through all those niggling little details
Dear Jonathan: My parents are coming out to visit me next month. One of the reasons for the visit is to prepare durable power of attorneys for financial and health care matters because they want me to act on their behalf in the event they are unable to act for each other. I have no problem being named as their agent, but shouldn’t those documents be drafted by a lawyer in the state where they live?
Jonathan Says: Yes, you are absolutely correct. Every state has its own laws regarding durable power of attorneys for financial and health care matters, and those documents should be prepared and signed by your parents in the state where they live. And yes, it would be in their best interests to have those documents prepared by an attorney knowledgeable in the preparation of those types of documents.
Dear Jonathan: About a year ago, I updated my estate plan which included a new will, durable power of attorneys for both finances and health care, a living will and a trust. I have now decided to move to another state to be closer to my daughter. Are the documents I prepared last year okay, or do I need to change them now that I am moving to a different state?
Jonathan Says: Since each state has its own laws regarding estate planning documents and their preparation, at a minimum, you should have the documents you had prepared a year ago reviewed by an attorney in the state where you are going to move to make sure that those documents comply with that state’s laws. This is especially critical for the durable power of attorney for finances and durable power of attorney for health care, because you want to make sure those documents are statutorily compliant and are accepted by third parties when the named agent under those documents has to act on your behalf. Good luck.
Dear Jonathan: My mother prepared a durable of attorney for financial matters just over a month ago naming me as her agent. Not long after, she suffered a stroke and is currently unable to act on her own behalf. I took her power of attorney to her bank for the purpose of accessing one of her accounts and they refused to accept it. They indicated that they would only accept the bank’s power of attorney form and since my mother is not able to sign any documents at this time, my only other option was to go through the probate court and be appointed her guardian and conservator. Can they do this?
Jonathan Says: Assuming the durable power of attorney was properly drafted and complies with all statutory requirements, the bank has no legal right to refuse to accept it. You should go back to that bank and ask to talk to a manager or to be put in contact with their legal department. If that gets you nowhere, then you should let them know that they will be hearing from your attorney. Hopefully, this motivates them to play ball so that you can avoid the hassle and the cost of having to involve an attorney to resolve this matter on your behalf. Good luck.
Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith in Grand Rapids, Mich.