Appointed under Power of Attorney? Get legal advice

Yesterday I had a phone call that illustrated for me how little most people understand about their role as attorney under Power of Attorney for their parents.

The caller wanted to distribute the substantial estate of his 96-year-old mother, who was still living, among his siblings. This in fact was requested by a couple of his siblings, who apparently don't see a problem in taking large sums of money from an old lady. The caller felt that he was allowed to do this because he was not only the executor of his mom's estate, but he was also named under her Power of Attorney.

Let's be clear here. Absolutely nothing in the standard Power of Attorney says that you can simply take your aging parent's money whenever you feel like it, simply because you will inherit some of it when the parent dies. Someone under a Power of Attorney acts for the parent, not for himself or his siblings and his duty is to put the parent first. Maybe that's not convenient because you could really use the money to take a vacation or renovate your house, but it simply is not yours.

Two minutes with a lawyer and the person under the Power of Attorney knows not to go ahead with the plans. The crisis is averted, the child has not stolen his parent's money and doesn't have to worry about legal consequences.

So why don't more people spend an hour with a lawyer once they've discovered that they are going to act under a Power of Attorney? Doesn't it make sense to find out what legally you can and cannot do?

In a recent thread on LinkedIn, several lawyers discussed ways to improve Powers of Attorney to beef up protection for the person giving the power (usually an aging parent). One of the suggestions given was that the Power of Attorney document include a clause directing the children who are appointed under the document to get legal advice on how to act as attorney before they are allowed to assume the role. The cost of the lawyer would be covered by the parent's funds.

The more I think about that suggestion, the more I like it. Greedy, dishonest children are one thing. Those who make mistakes despite being well-intentioned are another. The latter group is interested in doing a good job but doesn't have the information to do so.

If people appointed under Powers of Attorney aren't going to seek out legal advice on their own, perhaps having it made a condition of accepting the Power of Attorney role is the way to go.