Today Your Legal Corner will discuss ” Exploitation Protections in your Legal Documents.”
We spend most of our lives planning and saving for our retirement years. If we are lucky and God willing, we may actually get to enjoy our golden years. In order to safeguard your money, consider taking some important steps to ensure your funds are protected.
By 2030, the number of Americans aged 65 and older will more than double to 71 million, roughly 20 percent of the U.S. population. This dramatic increase in the aging population will also lead to a greater number of potential targets of financial exploitation.
A very important document in your estate plan is your power of attorney. A power of attorney is written authorization to act on another’s behalf on legal or financial matters. It is beneficial because it allows for someone to act on your behalf should you suffer a stroke or other medical condition that renders you incompetent. They have a fiduciary duty meaning they must act in your best interest.
Prohibition against gifting
It is better to not have a power of attorney than to have one that is poorly drafted. A poorly drafted document can be a license to steal. No matter how much you trust the individual you authorize to act on your behalf, you must ensure you are protected. Your power of attorney should include express, specific language prohibiting your representative from gifting to him or her self as well as others.
Unfortunately, many elderly people are unaware of this issue and execute powers of attorney unknowingly granting their representative the power to gift. Often, this language in the power of attorney is only discovered after money is missing. While they are supposed to be acting in your best interest, unfortunately language in your power of attorney permitting gifting allows your representative to misuse their authority. This obviously violates their fiduciary duty unless you expressly intend to give them this authority.
Typically, a power of attorney has the responsibility to pay bills, oversee bank accounts and pay for things that are needed by the elderly person. It is important for the representative not to commingle personal funds with their fiduciary funds. Make a list of your money, property and debts. Require your representative to keep a detailed list of everything received or spent on your behalf.
No matter how small the expense, require your representative to provide receipts for any transactions conducted on your behalf. A power of attorney should not pay expenses with cash. Further, your debit card should only be used by you-not your power of attorney. These requirements should also be expressly stated in the power of attorney.
As mentioned, in a power of attorney, the representative is duty bound to act in the best interest of the elderly person. The representative can be required to disclose a complete accounting of all transactions completed pursuant to the power of attorney. If your representative will not provide an accounting, you may file an application with the court for a formal accounting. The burden is on the representative to prove they properly disposed of all the funds.
Till next time, God bless, keep smiling, when Your Legal Corner will discuss “Living Wills.”
Victoria M. Dalton is an attorney with the law offices of Hoffman DiMuzio.
Send questions, or comments to Victoria at [email protected]. Or call 856-845-8243.
Please note that Your Legal Corner was created to provide educational articles about the law and is not legal advice.