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"Stale" Powers of Attorney Can Be Problematical & Social Security at Death
Jan L. Warner & Jan Collins

Question: After I retired in 1982, my wife and I went to a lawyer to sign new wills and powers of attorney. Each of us made our only son our agent and personal representative. When she became incapacitated in March and it was clear that I would not be able to care for her at home, I had to begin making arrangements because my wife and I own most of our assets jointly. I was shocked to learn that our bank and brokerage firm would not allow my son to use her power of attorney because it was "too old." My wife is not in a condition to sign another power of attorney. Can these institutions which were only too happy to take our money over the years now refuse to follow my wife's instructions?

Answer: Although most state and uniform laws do not address the issue of a durable power document lapsing after a certain period of time, a growing number of financial institutions are refusing to accept older documents on the theory that with the passage of time comes the likelihood that the person who signed the power of attorney has changed his or her mind. Some financial services entities take the position that since the law does not address this issue, they are bound by "common law" which provides that agency appointments lapse after a "reasonable" period of time.

If your state, like some, has added "anti-lapse" language to their statutory law, you are protected. If not, you may be at the mercy of the institution. Since "reasonable time" and "older document" are subjective terms, we suggest that you and your son go the to the bank president and brokerage company manager in an effort to resolve this problem. Since many banks are now regional or national, you may find yourselves in the quagmire of dealing with legal departments in other states. If this does not work, we suggest that you contact a lawyer who is well-versed in this area to help you review your options which could include litigation. If, in the end, your wife's power of attorney is not accepted, you may be forced to seek assistance from the probate court, which is what you tried to avoid when you signed powers of attorney. While we certainly understand financial services entities being careful, factual situations like yours should not give rise to these types of problems.

Taking the NextStep: The durable power of attorney is a most important planning tool. If you are married, interspousal gifting provisions are essential. If you have a durable power of attorney and your state does not have an anti-lapse statute, see a lawyer about including anti-lapse language in your documents. Think about updating your documents every four or five years. Or, best of all, contact your those who hold your money and investments now and find out their policies so you can deal with them before a crisis arises.

Question: My husband receives just under $1000 per month from Social Security, and I receive $450. Other than a small amount of interest, we have no other income, so we have had to make our pennies count. He has terminal cancer and is currently getting hospice services through Medicare. I am 73 years old, and I am concerned that at his death, I will not be able to get along on my Social Security alone. Are there other benefits available?

Answer: At your husband's death, you will begin receiving his higher benefit. There may be assistance programs in your state for aged, blind, and disabled persons for which you may qualify. We suggest that you check with your state's Department of Social Services.



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