Court Case Illustrates the Danger of Using an Online Power of Attorney Form

A recent court case involving a power of attorney demonstrates the problem with using online estate planning forms instead of hiring an attorney who can make sure your documents are tailored to your needs.

Mercedes Goosley owned a home in Pennsylvania. In 2013, she named one of her six children, Joseph, as her agent under a power of attorney using a boilerplate form that Joseph downloaded from the internet. Unbeknownst to Joseph, the power of attorney required Mercedes to be declared incompetent for Joseph to act as her agent.

Powers of attorney can be either immediate or springing. An “immediate” power of attorney takes effect as soon as it is signed, while a “springing” power of attorney only takes effect when the principal becomes incapacitated. The problem is that springing powers of attorney create a hurdle in order for the agent to use the document. When presented with a springing power of attorney, a financial institution will require proof that the incapacity has occurred, often in the form of a letter from a doctor.

In this case, Joseph began acting for Mercedes without getting a declaration of her incompetency. After she moved into a nursing home, Joseph listed her home for sale and accepted a purchase offer as agent for his mother under the power of attorney. At the time, Joseph’s brother, William, was living in the home, and Joseph instructed William to move out. This resulted in a dispute that ended up in court, with William arguing that Joseph did not have authority to act as his mother’s agent. A Pennsylvania appeals court eventually determined that Mercedes had intended to execute an immediate power of attorney as evidenced by the fact that Joseph had held himself out as Mercedes’ agent since 2013 and routinely conducted affairs on her behalf without Mercedes restricting or objecting to his agency.

While the court ultimately ruled in Joseph’s favor, Joseph and Mercedes could have saved time and money by consulting with an attorney before signing the power of attorney. An attorney would have been able to explain the difference between an immediate and springing power of attorney and tailor the power of attorney to Mercedes’ needs.

A properly drafted Power of Attorney is one of the most useful and important estate planning documents that a person can have. It can mean the difference between your agent having the authority and access to information  to act on your behalf quickly in an emergency and the alternative of  expensive and time-consuming court procedings to appoint a guardian and conservatorship.  Don’t make the mistake of using a form from the internet or trying to prepare a “do-it-yourself” legal document. When you meet with us  for an estate planning consultation, we will take the time to explain the provisions that you should  have in your Power of Attorney. We will prepare the document so that it meets your specific needs and circumstances, during periods when you are healthy and capable and also during any future times should you become unable to make decisions for yourself.