Don’t Do This With a Power of Attorney Document – McNamara Law Firm

It is common knowledge that all adults should have an Estate Plan. An Estate Plan consists of various legal documents, and typically includes a Power of Attorney document. This document names a trusted person called an “Agent” or “Attorney in Fact” to handle a person’s legal and financial affairs if that person (the “Principal”), is unable, without the need for court permission (called a conservatorship). The powers given to the Agent by the Principal may be broad or limited, and the legal document must state the allowed powers granted to the Agent.
The Agent must abide by the document’s terms, and has a “fiduciary duty” to always act in the Principal’s best interests. The California Probate Code, and the document itself, sets forth the rules for the Agent. Failure to abide by the rules can subject the Agent to civil and sometimes criminal prosecution. Here is a short list of what NOT to do as an Agent:
Don’t try to use the document AFTER the principal has died. The document “dies” when the person dies.
Don’t take actions which are not granted by the document.
Don’t try to act as the Trustee by using the Power of Attorney document. An Agent has no authority over Trust assets – only the Trustee has authority.
Never commingle the Agent’s money with the Principal’s money.
Always keep proper receipts and records.
If you are serving as an Agent, it is your responsibility to understand the applicable laws, and always act in a fiduciary capacity to the Principal. If in doubt, it is better to ask an Attorney for guidance rather than make mistakes.
For an appointment, please contact the McNamara Law Firm at (661) 287-3260 or visit www.themcnamaralawfirm.com.