When you sign a Durable Power of Attorney document, you name an Attorney in Fact, to act on your behalf in all financial matters. This power endures even if you become incapacitated, disabled or incompetent. However, many people do not realize that once you die, your Durable Power of Attorney is no longer valid. In other words, it dies when you die.
Often, the Attorney in Fact will attempt to access accounts post-death only to be told that he does not have the legal right to do so. Just recently a gentleman came into our office to discuss this very issue. He was a joint owner of his mothers only bank account, but she was the sole owner of a mutual funds account worth approximately $ 125,000. On a Friday, this gentleman thought that he should as his mothers Attorney in Fact transfer the mutual funds into the joint account so that he could pay her nursing home bills. But because he had other things that he needed to take care of that day, he put off the transfer intending to do it at the beginning of the following week.
Unfortunately, his mother died that weekend and her son was no longer able to access her mutual funds account. As a result, it became necessary to open a probate estate so that the son could be named Executor and then have the necessary power to access the account. While opening a probate estate is not difficult or complicated, it takes months to clear assets within an estate and there are court costs, inventory taxes and attorneys fees. In short, avoiding probate is a useful strategy to consider in many cases. Here, timely action under the durable power of attorney would have made life much easier for the family.
Whether you are granting a Durable Power of Attorney to a family member of trusted friend or a professional, or whether you are acting as the Attorney in Fact for a grantor of the powers, be mindful of the limitation of this power and act accordingly in managing assets and accounts.