Elder law is an area of law that focuses on legal advice which takes into consideration the key issues facing older and disabled adults: housing, financial well-being and autonomy/quality of life. An Elder Law attorney assists with planning for costs of long-term care, reviewing and applying for government programs, choosing retirement plans and many other issues such as planning and settling your estate. Disability planning is a very important piece of Elder Law. It gives peace of mind to individuals that their personal and financial affairs are in order in case they are not able to manage their own affairs.
Banks and Financial Durable Powers of Attorney
By Michael G. Kelly, Arizona Mobile Attorneys
We are contacted by persons who need assistance in regard to a bank that refuses to honor a validly executed Financial Durable Power of Attorney. This often occurs because the person who executing the power executed a “springing” power of attorney long before it was brought to a bank or other third party to add the agent under the power as a signor/authorizer on the account.
A “springing” durable power of attorney is a power that does not come into effect until the principal (the person providing the power) becomes incapacitated (unable to make informed decisions regarding their financial affairs). This can occur years after the Power of Attorney is executed by the person when they have capacity to execute it, causing the bank to view the power as stale and therefore questionable as to its validity. Though such a conclusion is in error, it is nevertheless a practical reality when dealing with some banks. Obviously this is a serious problem when an agent (often an adult child) is attempting to manage their principal’s (the parent’s) financial affairs because they are no longer able to. It is important to take steps to prevent this situation from occurring.
One approach that is often used is to name the agent as an actual owner on a joint account. This is a mistake because it invites fraud, in that the new co-owner is free to make unlimited withdrawals of money from the account that is not really their own. In addition if the new co-owner is ever sued for anything, the money that is in the account is now fair game in the law suit. Arizona Mobile Attorneys does not recommend this approach.
Another approach for a springing power is for the principal to certify the Power of Attorney by affidavit each year, effectively making it current. This may be somewhat effective, however, there is no guarantee a bank would accept it and the principal would be burdened with exercising the diligence to assure renewal each year. Alternatively, the Power itself could be redrafted and executed periodically but that involves even greater burden and in practice is unlikely to occur unless relationships have changed.
A final approach, and one which Arizona Mobile Attorneys recommends, is to execute an IMMEDIATE Durable Financial Power of Attorney. An immediate power comes into effect immediately upon execution as opposed to being delayed until incapacity occurs (springing power). By doing this the power can be immediately presented to a bank in order to have the agent added as a signor/authorizer on the account. This avoids staleness of the document and the burdens of annual renewal. It is extremely important that the agent is a highly trusted person who is beyond reproach since they are being given immediate powers to act on the principal’s behalf. The agent must tacitly understand that they are acting under the direction and knowledge of the principal at all times, while the principal has capacity. The document should have safeguards in place to assure that the agent would be held legally accountable for any financial abuse. This approach is vastly superior to adding someone on to an account as an owner with no legal safeguards.
© Michael G. Kelly, Arizona Mobile Attorneys
A recent article has appeared in the Arizona Republic discussing a substantial increase in Tech Support Fraud across the U.S. according to the FBI. The article stated that losses from this fraud in Arizona in just ½ of 2018 are 263% of losses in all of 2017. While this type of fraud can victimize anyone, it has been increasingly targeted at citizens over the age of 60.
The scams start with an unsolicited phone call, email or computer-screen pop-up notification from someone purporting to be a tech-support specialist who has identified a virus infecting the victim’s computer. They offer to fix the problem – which very likely doesn’t exist – FOR A FEE.
When a victim responds to a call, email or clicks on a pop-up, criminals will offer to help fix the victim’s technical issues, leading them to request remote access to the victim’s device. At that point the victim will have already paid them money.
NOTE: It is this writer’s experience that these scams are presented suddenly, while a person is working on their computer, and prevents the work from continuing until you call a number in a pop-up to get the problem “fixed.” One way to combat this problem is to press the ctrl key, then press the alt key while still holding the ctrl key down, and pressing the Delete key, while still holding the ctrl and alt keys down. This will interrupt the program and you can activate a program called “Task Manager” by clicking it on a window that comes up. You can then select the web browser you are using (Chrome, explorer, etc.) to eliminate the problem. At that point you should run any anti-spyware and anti-virus program you have and scan for problems to see if there is really anything going on and to clean up your computer.
The FBI states, anyone who is online is vulnerable to this scam, perpetrated by well-organized criminal organizations around the world looking to victimize people. Fraudulent tech support companies often will advertise their services online alongside legitimate companies, seeking to trick a victim.
With this access, scam artists can download malware to the victim’s computer, launch phishing attacks against the victim’s contacts and access the victim’s personal information such as tax returns or health records.
Criminals initiate contact with the victim and convince them to allow remote access. The FBI warns that access should never be granted to an unverified company.
According to the FBI a specific form of the fraud known as the “Fake Refund” is also becoming increasingly common. This scheme involves an offer to the victim for a refund for previous support services. The scam artist will then pretend to refund too much money to the victim’s account and ask the victim to return the difference. This kind of “refund and return” process can happen multiple times, causing the victim to potentially lose thousands of dollars.
My spouse is becoming very forgetful about things that would normally be remembered. I’m worried that the cause may be Alzheimer’s disease or other dementia. What should I do?
An obvious first step is to have your spouse checked out by a qualified physician. The doctor can determine what, if anything is actually wrong and recommend treatment. If the doctor’s diagnosis is dementia further legal steps to provide adequate legal protections are necessary.
It is important to have the doctor spell out, as clearly as possible; exactly what your spouse is capable of doing from a decision-making standpoint when the diagnosis is made. For example, can he or she identify and understand the extent of the property he or she owns and who his or her heirs are? Is he or she capable of understanding the nature of a transaction sufficient to enter into a contract? Can he or she identify those whom she trusts enough to manage his or her affairs in order to authorize them to do so?
If the answer to any of the above questions is “yes” then it is imperative to consult an elder and estate planning attorney in order to put your spouse’s legal affairs in order with documents such as Powers of Attorney for financial and medical affairs, wills, trusts, and any other documents which apply to her particular circumstances. By doing this, we can keep your life affairs private and reduce legal fees and court costs.
If the answer to the any of those questions is “no” it may be necessary to go into probate court and petition for a Guardianship and Conservatorship in order to take over management of your spouse’s personal and financial affairs. This is an expensive, public process that requires ongoing court supervision. This scenario will often occur once a dementia patient progresses to later stages and no longer has the capacity to enter into legal documents that would eliminate the need for a guardianship or conservatorship. This is another reason for consulting a physician and an elder and estate planning attorney as early as possible. It is strongly recommended to have legal documents in place that provide others with authority to act on one’s behalf well before dementia or any other disabling condition rears its ugly head.
Q. If my loved one becomes incapacitated can I arrange for their care and manage their financial affairs?
A. There is no inherent right to act for another person who is incapacitated based on a relation to them, except for a parent/child relationship. Express legal authority is required to do so. This applies to anyone age 18 and over.
Q. How does one obtain express legal authority to act for another?
A. It depends on whether or not authority was given to another to act for the incapacitated person before they became incapacitated.
No Authority Prior to Incapacity – Petitions for guardianship and conservatorship must be filed with the county probate court. A hearing is held to determine incapacity based on evidence presented and the petitioner or another person is named Guardian, Conservator or both. This proceeding is public and the Guardian/Conservator is under continuous court supervision, having a duty to make reports and perform other acts. These arrangements are expensive, time consuming, and often continue for a considerable period of time.
Authority Prior to Incapacity – The Guardianship/Conservatorship route can be avoided by using private Durable Powers of Attorney and designating a Patient Advocate. A Power of Attorney is a document signed by a person that authorized another to act on their behalf. It is “Durable” if it expressly continues even when the person issuing the power becomes incapacitated. Durable Powers of attorney are issued for both financial affairs and healthcare decision-making. Michigan law authorizes a Patient Advocate to act for an incapacitated person regarding healthcare and end-of-life decision-making. Durable Powers of Attorney can only be signed by a person who can make informed decisions regarding the matters that the document addresses. Significant time, privacy and expense can be saved by having these documents prepared and signed prior to becoming incapacitated. These documents are inexpensive compared to court proceedings.
Q. Can I add a person to my bank account so that they can write checks, pay my bills, and take care of ordinary, regular financial affairs on my behalf?
A. Yes. However, once you add an owner on an account they can withdraw the balance and use the money for their own purposes. A Durable Power of Attorney can allow another person to handle these functions and obligates them to act strictly in the best interests of the account holder. While some persons add loved ones as account owners to facilitate inheriting the money without going through probate, there are other ways to avoid probate without naming an additional owner.
Mike and Mary Kelly of Arizona Mobile Legal Services would like to welcome you to their new website. Please take the time to browse their practice areas of Elder Care, Veteran’s Benefits, Estate Planning, and Business Law.
Arizona Mobile Legal Services provides affordable and professional service to their clients. We come to you whether it is to your home, hospital, or business.
They handle many areas of the law that focus on senior citizens such as Medicare Planning, Long Term Care Planning, Veteran’s Benefits, and Medicaid Planning. In addition they offer Estate Planning and Business Law
They are unique from many large law firms: your work is handled completely by the attorney you put your trust in. They are fortunate to have an elder-care advocate that is also a legal assistant and registered pharmacist to assist with their Elder Care practice.
Arizona Mobile Legal Services offer convenient night and weekend appointments. Please give them a call at (623) 628-1110 to schedule your appointment. You can also email them for more information.