Elder Law Estate Planning Legal Topics

Who’s Got the Power (of Attorney Papers)?

So, you finally get around to preparing and signing powers of attorney for health care, personal care, and financial management. Now, where should you keep them? Should they be at your home? In a safe deposit box? At your attorney’s office? What’s the point of preparing these important documents if you don’t have them when you really need them?

Where to stash power of attorney documents actually depends on which one we are talking about.

Power of Attorney for Health Care. Because the health care power may be needed in the middle of the night or on a weekend, don’t put this document in a bank safe deposit box or left with the attorney. The agent should either have the original or know where it can be found quickly. Give copies to the principal’s physician or health maintenance organization (HMO) for placement in the principal’s medical file, but never the original because they might lose it.

Personal Care Power of Attorney. The personal care power of attorney document should always be in the hands of, or easily accessible to, the agent. Keep it at home in a safe and accessible place.

Financial Management Power of Attorney. This document is not intended to give the agent authority immediately on execution, but rather is meant to be used only in the event of incapacity. Although the agent can hold onto the document until it’s needed, giving the document to the agent too soon risks misuse. If the principal does not completely trust the agent, or if the agent does not want the responsibility of securing an original document, you can ask to leave it with the attorney.

Keep in mind that leaving originals with the attorney is not always an option. If the agent appears and requests the original in the attorney’s possession, the question arises whether the attorney has a duty to turn over the document. With a will, it is easy to ascertain whether the contingency, death, has occurred, but it may be more complicated to know when it is appropriate to give an original power of attorney to an agent. Given the complications of doing so, many practitioners simply refuse to keep original powers of any kind.

For everything you need to know about powers of attorney, go to CEB’s California Powers of Attorney and Health Care Directives. Also check out the CEB program Powers of Attorney and Health Care Directives, available on Demand.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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