Don't let your power of attorney fail when you need it most
As an Idaho estate planning attorney, I've seen too many families discover that their loved one's power of attorney (POA) documents don't work in a crisis. Here's what you need to know to ensure your POA will be honored when it matters most.
Financial institutions and healthcare providers in Idaho can refuse to accept a POA if they have reasonable concerns about its validity. While this protects against fraud, it can create devastating delays when families need to make urgent decisions. Here's how to create a robust POA that institutions will accept:
First, ensure proper execution. Idaho law requires your POA to be signed, dated, and notarized. While witnesses aren't legally required, having two witnesses in addition to notarization makes your document more likely to be accepted without question. Make sure your notary properly completes the acknowledgment section with all required information.
Keep your POA current. While Idaho POAs don't expire unless you include an expiration date, many institutions are hesitant to accept documents that are older than five years. Consider updating your POA every few years, even if nothing has changed. This shows it reflects your current wishes.
Use clear, specific language about powers granted. Vague terminology leads to rejection. Your POA should explicitly list powers like real estate transactions, banking, investments, insurance, benefits, retirement accounts, and tax matters. For medical POAs, clearly state whether your agent can make end-of-life decisions.
Name backup agents. If your primary agent is unavailable, institutions may reject your POA rather than skip to an unnamed backup. Name at least one alternate agent and specify the circumstances under which they can act.
Include a "durability" clause. Without specific language stating the POA remains valid if you become incapacitated, it becomes void exactly when you need it most. Use clear statements like "This power of attorney shall not be affected by my subsequent disability or incapacity."
Pre-validate with key institutions. Contact your bank, investment firms, and doctors now to review their POA requirements. Many have their own forms to fill out or specific language they require. Better to discover and address these issues while you're healthy.
Provide copies proactively. Give copies to your agents, doctors, and financial institutions before they're needed. This allows them to verify the document's authenticity in advance and flag any concerns. Keep a list of everyone who has a copy so you can provide updates if needed.
Store originals safely but accessibly. Your POA is worthless if no one can find it in an emergency. Keep the original in a fireproof safe or bank safety deposit box, but make sure your agents know the location and have access. Consider giving one trusted agent an original to keep. Your attorney should also have a copy.
Review regularly with your attorney. Laws change, institutions adopt new requirements, and your circumstances evolve. Regular reviews ensure your POA remains effective and reflects your current wishes.
Remember, a power of attorney is only useful if it works when needed. Taking these steps now can prevent your family from facing delays, stress, and expensive court proceedings during an already difficult time. While these precautions may seem excessive, I've seen too many families discover too late that their loved one's POA wasn't adequate. A small investment of time and attention now can save enormous heartache later.
Have questions about your power of attorney documents?
My law firm is currently offering free telephonic, electronic, or in-person consultations concerning creating or reviewing estate planning documents.
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Robert J. Green is an Elder Law, Trust, Estate, & Guardianship Attorney and the owner of Kootenai Law Group, PLLC in Coeur d’Alene. If you have questions about estate planning, probates, wills, trusts, powers of attorney, guardianships, Medicaid planning, or VA Benefit planning, contact Kootenai Law at 208-765-6555, Info@KootenaiLaw.com, or visit www.KootenaiLaw.com.
This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.