Tuesday, December 22, 2009

PoA Can Create Headaches

Have you agreed to serve as "power of attorney" for a close friend or relative if he or she becomes incapacitated?

If so, you might regret it.

I've endured untold hassles in this capacity. So I cheered when Stuart attorney William R. Ponsoldt Jr. obtained a $64,000 judgment against Bank of America for failing to honor a power of attorney agreement.

Bank of America has said it plans to appeal the Martin County Circuit Court decision in favor of Clarence H. Smith Jr.

This court suit, which began in 2007, illustrates problems if you take on this task — even though a durable power of attorney is a basic estate planning tool that virtually everybody needs. Financial institutions cite widespread fraud for their sometimes impossible requirements.

Under Florida law, a financial institution that "unreasonably" fails to honor the power of attorney is responsible for all the damages the person has sustained, according to Ponsoldt.

A bank may review the document to be sure it lets the power-holder do what he or she wants to do. Plus, it may seek identification, and demand an affidavit or written, notarized statement.

A financial institution in your local area may ask to view the original document.

However, requiring you to fill out its own form is "unreasonable" (in violation of Florida law), Ponsoldt contends.

Other acts by financial institutions that Ponsoldt says are "unreasonable" include requiring a new document, or to meet with the person who appointed you.

Full Article and Source:
Power of Attorney Can Create Headaches, So Know Your Rights"


StandUp said...

This is a good article. But people need to know a DPoA is just an useless piece of paper in a lawless court.

Norma said...

A PoA shouldn't create headaches, though. It's a legal document and should be as "powerful" as the document's name.

Anonymous said...

A power of attorney is often rolled over by judges in their pursuit of guardianship.

LoriView said...

Banks are a major part of the problem in elder law - greedy as any individual lawyer. They should not be free to challenge what appear to be validly executed documents.

They are entitled to make a copy for their records, because there are tougher criminal penalties being made in connection with misuse by an attorney-in-fact.