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Durable Power Of Attorney For Finances

What Is The Best Way To Execute A Durable Power Of Attorney?

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The following techniques will help protect your Power of Attorney against challenges and make it easier for your agent/attorney-in-fact to use the power:

  • Execute (sign) a general document, as well as a specific one for each bank or financial institution you use. Legally a power of attorney is effective for all your financial dealings. However, most banks and financial institutions require use of their own form. It's not that a general form is not legal. It's more that their attorneys approved their particular form and the bank or institution knows what it means. A financial institution is likely to accept your form is pushed -- but that takes time and can also take money in the form of legal fees.
  • Execute multiple copies: Consider executing up to six duplicate originals of your Power of Attorney since many companies insist on having an original.
  • Use witnesses: Witnesses can help prove that you were of sound mind when you executed a power of attorney. Even if your state doesn't require it, sign your power of attorney in front of two witnesses. Then have the witnesses sign an affidavit that says:
    • You asked each of the people to act as witnesses to your signing the power of attorney.
    • They each actually witnessed you execute the power of attorney.
    • You appeared to be competent and of sound mind.
    • You appeared to know what you were signing.
    • That you were acting under your own free will and not any undue influence.
    • We provide a sample affidavit at: Durable Power Of Attorney: Affidavit Of Attesting Witnesses.
  • Get your agent's signature notarized: Even if not required by your state, have your agent or agents sign your power of attorney in the presence of a notary public.
  • Videotape the signing ceremony from beginning to end (preferably without stopping and starting again.)
    • Start with a statement of your intent to make a durable power of attorney.
    • Sign the document.
    • Ask the witnesses to witness your signature.
    • Video your witnesses signing as well.
    • Be careful. If you look very ill or even a bit distracted, someone who challenges your Power of Attorney may try to use any visible quirks of behavior or language as evidence that you were in fact not competent when you executed the document.
  • As further proof of your competency, attach a letter from your doctor. The letter should be signed close to the time you sign the power of attorney. It should state that the doctor believes you are competent and that you are not under any undue influence.

It is advisable to re-execute your Power of Attorney with this same procedure every few years. Some companies might hassle your agent over a power of attorney that's more than a few years old.

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