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Alternatives - By Tim Barkley

"Why is this document so long?" Mrs. Jones sat in trepidation at her lawyer’s office shuffling the many pages of her new power of attorney. "Why can’t I just say that I want my children to be able to pay my bills, and handle my affairs if I can’t?"

The lawyer smiled. "You can. That’s what this does."

His client shook her head ruefully. "Why can’t it just say my son John can do anything he thinks he needs to do?"

"Well," her attorney began, "there are these nasty things called computers, and these awful creatures called lawyers . . . "

Both smiled. The lawyer continued, "With the advent of word processing, it became simpler to make documents longer.

"About the same time, banks and brokerages were getting sued because powers of attorney that contained general language like ‘manage bank accounts’ were being used to do things like close out CDs. A CD is not, technically, a bank account as that term is usually understood. The bank was often found liable to a disgruntled child who objected to the actions of another child named as agent under the power of attorney.

"So, the banks and other asset custodians began to insist that powers of attorney be more and more specific. The real question, then, isn’t ‘is it too long,’ but, ‘is it long enough.’"

Mrs. Jones was not convinced. "Why can’t life be simple? Isn’t there anything I can do besides sign this big thing?"

Her attorney nodded. "You could just do nothing, but then if you can’t pay your own bills and take care of your own affairs, your son will have to go to court and be appointed guardian. That’s expensive, embarrassing and time-consuming. Not a very good option.

"You could go to your bank and your stockbroker, and see if they have a power of attorney form. It will probably be shorter, but will only deal with your account with that bank or broker. So, you trade one long form for several shorter ones.

"Not every bank or brokerage has a form. Some only have a power of attorney designation on accounts for agents named under a power of attorney drawn up by a lawyer.

"And because these forms only apply to a particular account at a particular bank or brokerage, your son couldn’t use it to open a new account at a new bank if your bank was sold or closed the local branch. And he couldn’t use it to open a CD at a different bank if that bank’s rates were better than the rates at your bank.

"You could make your son a joint owner of all the accounts. That means he owns the assets right now, so he can write checks or liquidate securities. That’s simple, but it’s a very bad idea. Even if your son would never steal your assets, making him a joint owner means that his creditors could enforce his legal right to those assets and take your accounts.

"That’s why I use this document. It works, it’s flexible, and it keeps you out of court."

Mrs. Jones nodded. "I still don’t like it," she said, "but I understand now why you use it. I’ll take it home and read it, and have my son look at it. But I’ll probably fall asleep, so don’t expect me to hurry!"

The attorney nodded laughed. "My power of attorney is apparently a cure for insomnia. So it works in more ways than one!"
 

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The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
Mount Airy, Maryland 21771
(301) 829-3778

tbarkley@barkleylaw.com

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