Powers of attorney have become commonplace for any estate plan, and for obvious reasons they should be. These documents serve as a safety net for clients who become unable to handle their finances. It is no secret, however, that these documents, if used imprudently, can also be the source of mistrust, abuse and familial turmoil. Whether a power of attorney works as the principal intends requires that the agent have a reasonable sense of what those intentions are when he or she implements the document, which is frequently not the case. Therefore, whether the power of attorney works to the benefit or detriment of the principal is ultimately dependent upon the actions of the agent.

Because the agent’s role is so crucial to the success of the power of attorney, one would assume that substantial attention is dedicated to educating the agent about expectations, his or her authority under the power of attorney, and the ramifications of breaching his or her duty under the document; however, most attorneys will say that the opposite is true. Typically, a power of attorney is boilerplate prepared by a lawyer—or assistant—with little variation from client to client and with relatively little discussion with the principal. The agent, if not the principal’s spouse, often does not participate in the process at all until asked to sign an agent acknowledgment form after the power of attorney has already been prepared and signed. This cavalier approach must change in light of recent changes to the statute, and significantly more attention must be focused on making sure that the agent knows, with particularity, what is expected.

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