From our “Ask a Question” mailbag: My mother, who lives in Burlington County, New Jersey, is having serious health problems. She wants me to be able to use her general power of attorney, but it says I need a doctor’s note saying that she is incapacitated. Is that normal?
Your mother has a “Leaping” Power of Attorney, which at one time was the normal document that Burlington County Estate Planning Lawyers would prepare. A Leaping Power of Attorney gives the “Agent” the power to act for the person if—and only if—that person has become incapacitated, and the Agent can secure a letter from the person’s doctor stating that the person is incapacitated. Without the letter the power of attorney is useless.
The problem with Leaping Powers of Attorney is that doctors (fearing lawsuits) are hesitant to sign letters declaring the person is incapacitated, knowing that the letter will give power to the Agent to access the patient’s money.
Instead, the normal document drafted by a Burlington County Estate Planning Lawyer these days gives the Agent the power to act as soon as the document is signed. This does present the problem of when to give the Power of Attorney to the Agent. If you give the document to the Agent, the Agent could embezzle or steal assets, using the document illegally.
At our firm, we offer the client the free service of holding the Power of Attorney in our safe, with written instructions that we are only to release the General Power of Attorney to the Agent if the Agent can prove to us that our client has become incapacitated. This way, the document is signed and ready to use, but the Agent cannot use the power of attorney to steal from the client. Proving incapacity is usually simple, as the client is often hospitalized by the time the Agent contacts us.
In your case, if your mother is still competent, I suggest that she consult with a Burlington County Estate Planning Attorney and sign a new Power of Attorney.
If you have questions about Estate Planning and Litigation in Burlington County, feel free to contact our office for a free consultation.