860.447.1968
Provatas & McNarmara Attorneys at Law, New london, Connecticut

Power of Attorney – By Kathleen A. McNamara, ESQ.


POWER OF ATTORNEY
BY KATHLEEN A. MCNAMARA, ESQ.
PROVATAS & MCNAMARA, LLC
516 VAUXHALL STREET, SUITE 203
NEW LONDON, CONNECTICUT 06320
TEL: (860) 447 – 1968
FAX: (860) 447 – 3174

A power of attorney is a written document whereby a person grants to another person certain of his or her powers. The person granting the powers is called the “principal” and the person given the powers is called the “agent”. When the agent acts on behalf of the principal he or she signs documents as the principal’s “Attorney-in fact” shortened to “AIF”, or “power of attorney,” shortened to “POA”. In Connecticut, the relationship between the principal and agent is an agency relationship. Once executed the agent may act on the principal’s behalf immediately.

The Connecticut statutory short form power of attorney is an example of a power of attorney which grants broad and sweeping powers to the agent. The short form provides that the reference to certain powers by name creates powers that are broadly defined by Connecticut statute. These powers are: real estate transactions; chattel and goods; transactions; bond, share and commodity transactions; insurance transactions; estate transactions; claims and litigation; personal relationships and affairs; benefits from military service; records, reports and statements; and all other matters. Powers may also be added to the short form power of attorney to provide for circumstances particular to the principal that are not included in the powers specifically itemized by Connecticut General Statute Section I-42, et. seq. as set forth above. These include, but are not limited to, the power to make gifts, to deal with retirement accounts, to deal with health and life insurance issues, transfers into trust (funding a trust), establishing a trust, dealing with tax matters of the principal, including the IRS and Connecticut DRS, resigning from fiduciary positions and appointing a successor, applying for government benefits such as Medicare, social security and Medicaid (Title XIX), etc.

Of course a power of attorney can be limited. The principal may choose to grant just one, a few or all the powers or limit the power to just one specific transaction. The principal may also choose a date certain for the power of attorney to expire. For example, it is common to use a power of attorney limited to a specific transaction at a closing for real property since it is often the intent of the principal that the power be limited in such a way.

A power of attorney can also be “durable”. A “durable” power of attorney will survive a person’s disability or incompetency (ie: the agent can continue to act even if the principal is incapable). Such a power of attorney can sometimes avoid the need and expense of a conservatorship. To be “durable” the power of attorney must contain the following language: “This power of attorney shall not be affected by my subsequent disability or incompetence”.

The principal should always seriously consider who he or she chooses to be his or her agent. To put it simply, the principal has to have a high degree of trust in his or her agent. One way of limiting possible abuse by the agent would be to appoint two agents (co-agents) to act “jointly”. This would require both agents to act together on all matters including signing all documents. Another limiting technique would be the use of a “springing” power of attorney. A “springing” power of attorney only has the agent succeed to his or her position of trust as agent when a certain event happens, as prescribed in writing by the principal. An example of such a triggering event is “the determination in writing by a physician that the principal is incapable of handling his or her affairs.” This, however, does not avoid the ability of the agent to abuse his or her powers once in place as agent. The principal does have the right to request an accounting by the agent in probate court pursuant to Connecticut General Statute Section 45a-175.

In Connecticut, the duration of a power of attorney is unlimited, unless limited in the power of attorney itself, subsequently revoked by the principal or terminated by the death of the principal. This is the law in the state of Connecticut but one is cautioned that this is sometimes not the practical application of the durable power of attorney. Many banks, brokerage firms, insurance companies and other institutions have their own policies that dictate whether they will accept a power of attorney. This is difficult to plan for since an individual’s assets and life circumstances change continuously. One measure the principal can take would be to bring his or her power of attorney to each of his or her respective institutions and ask them to review same to determine if that particular institution will accept the power of attorney. These institutions may have their own particular language that they would like to see in the power of attorney or may have a special power of attorney form that they use at their institution.

A power of attorney is a very important planning tool that one should carefully consider. It is advisable that you seek the advice of a professional familiar with the intricacies of powers of attorney.

 

 

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