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Making the Most Out of Your Power of Attorney

Present and Future Protections Against the Unknown

A Power of Attorney is a legal document in which you grant a selected person or persons the ability to act on your behalf in financial matters. This can include, but is not limited to: signing on your behalf during a sale, accessing your bank account to pay your bills, adjusting your investments, etc. As such, it is an integral part of any estate plan.

Unfortunately, with this important document come some inevitable risks. The selected person or persons will have access to and control over some of your most valuable assets. More importantly, once the access and control is given, they will be able to take actions without obtaining permission or approval; unless and until the document is revoked.

For many this is cause for concern. They worry that they are sacrificing the safety of their present assets for the sake of future protections against incapacity. And, to some extent they are correct. To protect yourself in the future, there is a certain amount of control that must be given up in the present. But, there are several ways to mitigate these risks.

Here are some of the main ways that this can be accomplished:

Select a Power of Attorney that you trust.

It is very important to think long and hard prior to selecting a person or persons as your Power of Attorney (also known as your POA). But, this choice is more than just finding someone that you can trust not to steal your hard earned money. (Though that is important.)

You should be looking for someone that you trust to make financial decisions in the same manner that you would. To do this, you must first carefully consider your beliefs/opinions/values regarding money. Then, attempt to select someone that mirrors those same beliefs/opinions/values in their own life.

It is also important to consider whether or not the POA you select can handle the responsibility of being your Power of Attorney. Handling the finances of another person can be a difficult responsibility that not everyone is capable of taking on. Carefully consider how the POA will balance their own responsibilities with your own. And, whether the POA will know when to seek assistance if the responsibility becomes too great.

Finally, it is important to make changes to your Power of Attorney Document if circumstances change. As time passes, life events may occur that give you reason to change your POA. Do not hesitate to make such changes, as you never know when you will need your Power of Attorney Document

Carefully Crafted Provisions within the Document.

Even when a POA has been carefully selected, your assets may still be vulnerable. The future is unpredictable and the person you once trusted may disappoint you. Therefore, it is important to have your Power of Attorney Document drafted to restrict the actions your POA can take.

One such provision could be a Restriction on Gift Giving. This provision would not allow your POA to make a gift of your assets to themselves. For example, should the POA wish to acquire your property, they would be forced to pay fair market value for it. Another provision could be to restriction the POA from making amendments to your Estate Plan. This could protect your Will and Trust from being amended in a way you would not have wanted.

Not all protective provisions will work in every situation. Carefully discuss your individual circumstances with your Attorney. They will be able to suggest specific provisions that will fit your needs.

Keep the Signed Power of Attorney Locked Away.

If you are still concerned regarding the safety of your assets, it may be an option to sign your Power of Attorney Document but keep it in your possession. As the signed original is required for the POA to act, without it they are powerless. You could then choose when you wish your POA to have access by simply delivering the signed document to them.

It is important to note that this course of action does not come without risk. If need arises for the POA to act, but they do not have access to the signed original, they will be powerless. If the Power of Attorney Document cannot be located or the POA does not know the document exists, it could then become necessary to petition the court for the authority to act on your behalf. A court petition could be a lengthy and costly procedure. And, it could ultimately result in a POA being selected that you would not have appointed.

Consider a Limited Power of Attorney.

This may be a good option for you if you have a specific task that you need done that you either cannot or do not want to do on your own. Often, this document is used during real estate transactions. For example, an attorney will be requested to attend a closing on behalf of a buyer or seller. In this case, the Limited Power of Attorney Document will allow the POA the ability to sign documents at the closing. Once the closing is complete, the powers granted to the POA by the Limited Power of Attorney Document cease.

Though this type of document may assist with protecting present interests by limiting the POA powers, it leaves much to be desired. A Limited Power of Attorney Document does not and cannot anticipate every need you may have in the future. Therefore, when the unexpected occurs, your POA may be left seeking court approval to handle the matter.

Consider a Springing Power of Attorney.

A Springing Power of Attorney is as all encompassing as a general Power of Attorney but it includes a specific provision that requires a certain event to occur before it becomes active. Normally, this event is incapacity.

Theoretically, this document offers the best of both worlds. You maintain sole control over your assets while you are capable then your POA can take over as soon as the activating event occurs. However, there can be significant downsides.

The significant downside and a reason why this type of Power of Attorney Document is not always recommended is the trigger event. If a need arises prior to the triggering event, a court order will be necessary. And, if the triggering event is incapacity, there can be several steps necessary to activate the Power of Attorney Document. These can include providing incapacity to a Doctor or court, which can take time that the POA may not have.

Homestead Protection for Trusts

Revocable Trusts can be a good way to protect your assets from the probate process. Properly drafted and executed, assets will automatically transfer to your loved ones upon your passing. It also allows you to retain control over your assets while you are alive and gives you the ability to alter the trust as you see fit.

A common misconception regarding a Revocable Trust, however, is that they have some ability to protect your assets from creditors. It is important to know that this is not the case. Because you retain primary control of your assets, with the ability to alter the trust at any time, creditors are still able to access the assets to satisfy debts.

Fortunately for Massachusetts Residence, there is a way to protect your home from most creditors while having it in a Revocable Trust. This protection is known as the Homestead Protection Act.

The Homestead Protection Act, protects your primary residency from unsecured creditors. These creditors are, for example:

  • Someone that slips and falls on your property
  • Medical Bills
  • Credit Card Bills
  • Someone that sues you for something that happens while you are on the job
  • Someone you get into a car accident with; and
  • Many more

The Homestead automatically protects the equity in your home for up to $125,000.00. But, many Massachusetts residence own homes that are worth more than $125,000.00. For these individuals, a Homestead can be filed with the Registry of Deeds and the protection will be increased to $500,000.00. For many this is the difference between a completely protected home and a home that is vulnerable to creditors.

Before March of 2011, this protection was only available to individuals that owned their homes in their own name. Once the property was placed into trust, the protection was lost. However, in March of 2011 the Homestead Act was extended to properties held in revocable trusts if proper requirements were met. A homestead must be filed with the registry of deeds and it must state that the property is owned in trust and that the primary beneficiaries currently or intend to live in the property as their primary residency. Once this is done, your home will have the best of both worlds; the future protections of a trust and the present protections of the Homestead Protection Act.

By putting your property in trust, you are saying that you are concerned about the loved ones that you will leave behind. You are allowing your loved ones the ability to avoid the probate process and the time and money that goes along with it. It only makes sense that you would want to take this simple step to protect one of your most valuable assets while you are alive. By putting your property into a trust with a Homestead Protection, you are protecting it from both the probate process and most creditors.

Click here to read the homestead law.

Please contact Topkins & Bevans to learn more about this important protection and how to obtain it today. firm@topbev.com or bmartin@topbev.com

Tax Time Considerations: Estate Plan? Yes

This is the time of the year when all of us have no choice but to pour through our bank statements, credit card statements, checks and acknowledgments from charities regarding contributions. Whether you prepare your own tax returns, or have a professional assist you, the first step is always to gather together data from the past year and assemble it into a form which will permit the preparation of an accurate tax return.

While you are going through this data-producing exercise, you might want to consider your Will, and other elements of your Estate Plan, at the same time. While your Estate Planning documents focus more on whom you would want to take charge of your assets, and to whom, and in what amounts you wish your assets to be distributed, preparation for getting your Estate Plan in shape is not that much different from getting your tax information together. Perhaps, you have an Estate Plan, but it was executed many years ago and the people you selected to serve as executors and trustees, or health care agents, are no longer living or have moved away. Maybe, your children have achieved a level of maturity where you can trust them to take care of things when you are no longer able. Maybe you have developed a relationship with a bank, or other financial institution, which you are comfortable with, and whom you want to get involved.

The point is just like your tax returns take some effort to gather information; your Estate Plan requires the same type of thinking and assembling. It matters not that you have located all the information concerning your income for 2014, if you do not get same on the return; you are in jeopardy with Federal and Massachusetts tax-collecting authorities. Similarly, even if you have located your old Will or Trust, your wishes will not be served unless you make the effort to meet with an attorney and inform him or her whom you want to be in charge, and to whom your assets should be distributed. Sometimes, all you need to do is “tweak” your current Will or Trust with a Codicil or Trust Amendment. Other times, you may need to prepare entirely new instruments, because the ones you have in place are so “dated”.

If you are one of that majority of Americans who have no Will or Trust in place, AT ALL, tax time may be the time that you climb off the fence and stop procrastinating with your family’s future. You really owe it to your spouse and children to put down in writing to whom you want your assets distributed, and which people you want involved in making it happen. Not everyone in your family will be happy with your choices, but no one will be able to say “Mom would have wanted this” or “Dad would have wanted that”. You do not have to rely on the laws of the Commonwealth of Massachusetts to distribute your wealth. You will have made it perfectly clear what you want.

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