Sunday, May 22, 2011

Alternatives to the Joint Account: The Pros and Cons of a Power OF Attorney


So, if you’re telling me not to put my daughter on my accounts, what are the alternatives?  How can I be sure I will have someone to take care of my financial affairs if I’m not able to?

In my last post, I told the story of Mary and her daughter, Nancy.  I pointed out the pitfalls to having adult children – or other people- as joint owners on real estate and bank accounts.  I promised I would share some alternatives to joint accounts.

One alternative is to appoint someone as an agent under a financial power of attorney.  The agent is authorized to make financial decisions for you if you are not able to make decisions – or if you just don’t want to make those decisions any more.  A financial power of attorney can be for a one-time transaction – like buying or selling your home – or it can be for any and all financial transactions.  A financial power of attorney should be durable, meaning that it will still be in effect even if you no longer have the mental capacity at the time of the transaction.  

Some advantages are that if you become suddenly incapacitated, you have someone with the legal authority to step in and make your financial decisions while you are incapacitated.  In addition, if you are okay but just need someone to help you make sense of information, your agent can discuss your financial affairs with your insurance company, your financial institutions or your CPA.  Your agent can then explain the information and help you understand so that you can make your own decisions. You can also appoint an agent under power of attorney to have authority to sign checks for you if you need some help paying your bills.

What are some downsides to the financial power of attorney?  We sometimes call a power of attorney document a “blank check.”  When you appoint someone as your agent under power of attorney, you are giving them lots of power with no instructions on how to use that power.  Imagine giving someone a blank check and telling them to go out and buy you a house without telling them where you want to live or how much you have to spend.  Chances are that person would buy a house in a neighborhood where you had no desire to live at a price you couldn’t afford.  Giving someone the authority to spend your money without giving them instructions can be frustrating and dangerous for both you and your agent.

Another downside is that the financial power of attorney dies when you do. The agent under a financial power of attorney has absolutely no legal authority to handle your finances after your death.  That means that upon your death, there is no one with the legal authority to deal with your finances, and your family must often wait until the probate court judge appoints someone to administer your estate before they can access your bank accounts.

I generally recommend that clients have an agent named in a durable power of attorney for finances, but I also warn them to have a discussion with the agent about when it is appropriate to use the power, and to point out the limits of that power.

In my next post, we’ll talk about another alternative to the joint account – the living trust.

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