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From Our “Ask a Question” mailbag: “I have heard stories about Power of Attorney abuse and theft. So, where do I keep my Power of Attorney?”

Power of Attorney abuse is a real problem. A typical durable general power of attorney gives your “Agent” the authority to access your accounts and sell your assets. These capabilities are essential so your Agent can take care of you. But, they are also powers that can lead to theft and fraud.

Ask a Question” mailbag: “Can my son use my power of attorney to give away all my property?”

A Durable Power of Attorney gives your “Agent” the right to make financial decisions on your behalf during your lifetime. Each power of attorney can be unique. I need to examine your actual document to answer the question, can your son use that particular document to legally make gifts to himself, but here are some facts. A durable power of attorney can give your son the right to make unlimited gifts. In other words, your Power of Attorney could allow your son to legally leave you penniless.

From our “Ask a Question” mailbag: “After a 10-year relationship my Partner and I have parted ways. Previously, I gave him a General Durable Power of Attorney, but now he won’t return my Power of Attorney. Can he use this to empty my bank account?”

From our “Ask a Question” mailbag: My brother named me his agent under his Atlantic County, New Jersey power of attorney. Now my sister claims I embezzled and stole money using that power of attorney. How do I clear my name?

As agent, you are permitted to retain an Atlantic County Surrogates Court Attorney to assist you in filing a Formal Accounting of all your actions as Agent. This accounting is then provided to all interested parties, who are free to either accept the terms or object. If they file objections, you are then able to address these objections in front of a judge. In the end, the judge then rules on the evidence presented.

From our “Ask a Question” mailbag: I have signed a General Power of Attorney giving my girlfriend the power to act for me, but I don’t want her to have it yet. I only want her to have it when (and if) I become unable to care for myself. Should I keep it in my safe at home? We both live in Bucks County, so she is close by.

The problem with putting your General Power of Attorney in your safe is that if you become incapacitated, your girlfriend will likely be unable to get into the safe. You could give her the combination to the safe, but that runs contrary to your wish. If she has the combination, she can get to the General Power of Attorney at any time. This is a common problem.

From our “Ask a Question” mailbag: Years ago, I gave my husband a General Durable Power of Attorney. Now I am divorced, living in Montgomery County, and I want to give Power of Attorney to my daughter. My Ex will not give me the old Power of Attorney. Can I revoke or void the Power of Attorney if he still has the original?

Yes, you can void a Power of Attorney at any time as long as you have the requisite mental capacity. Your situation will be a little more complex, as you have given the original document to your former agent. I have not seen that Power of Attorney, but it may have a paragraph that states that banks and others need not confirm with you that the document is still in power.

From our “Ask a Question” mailbag: My father, who lives in Atlantic County, New Jersey, is having serious health problems. He wants me to be able to use his general power of attorney, but it says I need a doctor’s note saying that he is incapacitated. Is that normal?

Your father has a “Leaping” Power of Attorney, which used to be the normal document that Atlantic County Estate Planning Lawyers would prepare. A Leaping Power of Attorney only gives the “Agent” the power to act if—and only if—the principal is incapacitated, and the principal’s doctor confirms the incapacity in a letter. Without the letter the power of attorney is useless.

From our “Ask a Question” mailbag: I have signed a General Power of Attorney giving my daughter the power to act for me, but I don’t want her to have it yet. I only want her to have it when (and if) I become unable to care for myself. Should I keep it in my safe deposit box? We both live in Montgomery County, so she is close by.

The problem with putting your General Power of Attorney in your safe deposit box is that if you become incapacitated, your daughter will likely be unable to get into the box. If you have died, there is a process to open the box. But, that process is much more complex if you are still alive and incapacitated.

From our “Ask a Question” mailbag: My mother, who lives in Gloucester 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 Gloucester 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 certifying that face. Without the doctor’s letter, the power of attorney is useless.

From our “Ask a Question” mailbag: Years ago, I gave a friend a General Durable Power of Attorney. Now I am married, living in Chester County and want to give Power of Attorney to my spouse. My former-friend will not give me the old Power of Attorney. Can I revoke or void the Power of Attorney if he still has the original?

Yes, you can void a Power of Attorney at any time as long as you have the requisite mental capacity. Your situation will be a little more complex, as you have given the original document to your former agent. I have not seen that Power of Attorney, but it may have a paragraph that states that banks and others need not confirm with you that the document is still in power.