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I just accepted the position of Agent under a Durable Power of Attorney for my mother; what will my duties be?

 

February 1, 2020 | View PDF



Your duties will be what the Durable Power of Attorney says they are. It depends on what powers your mother (called the principal) has given you and when they become effective. There was a change in the Alabama statutes concerning Alabama Powers of Attorney beginning January 1, 2012. If your attorney used a format substantially like the sample document in the statute (as required in the statute) then there should be multiple powers that your mother may have given you and thus a multitude of things that you can do on behalf of your mother.

The document itself will tell you whether the power of attorney is effective immediately or whether it is springing. A springing power of attorney only becomes effective on the occurrence of an event such as incapacity. For incapacity it will generally depend on the opinion of a physician as to whether the maker (principal) of the document has the capacity to handle his or her own affairs or not. The capacity standard to sign and execute a power of attorney is substantially whether or not that person can make and execute a contract.

To clarify the word “durable”, all Durable Powers of Attorney are now considered by default as durable if executed after 1 January 2012 and the statute is substantially followed. Powers of Attorney executed prior to that required language that the POA was effective even in the incapacity of the maker, which to me has always been a prime time in which the POA should be used. Even though a DPOA is durable by default I continue to include the relevant language to make one a durable out of habit.

The Alabama Interagency Council for the Prevention of Elder Abuse was created by the legislature in 2012 and has published a guide for Agents under the Alabama Durable Power of Attorney, called MANAGING SOMEONE ELSE’S MONEY IN ALABAMA. It begins by pointing out that one named to help manage someone else’s money or property is called a fiduciary. So for instance an Agent under a DPOA is a fiduciary but so is one that sells securities and manages a client’s money or a trustee for various types of trusts. Some of the things as pointed out when acting as a fiduciary under a DPOA are, (paraphrased) (1) act as the principal would act and only in their best interest, (2) carefully manage the property and money, (3) keep the money and property separate from your own and (4) keep good records. It goes on to correctly point out that mishandling someone else’s money can have you removed as Agent under the DPOA or even sued possibly having to repay the money. A more grievous misuse of the principal’s money could cause one to be criminally charged and even go to jail.

The booklet mentioned earlier is very good and is well laid out in layman’s terms. Just because you are named does not mean you have to accept the position as Agent and if you do your length of time that you act is limited by the document itself, the principal’s life (it terminates at death), a marriage if one is married to the principal or potentially if the principal later requires a conservatorship. Your time of course may also be limited by how long you are willing or able to act as Agent. Should your time come to an end but the DPOA is still effective then a successor agent should have been named in the original document that hopefully is available to take over. If there is none and the principal is unable to understand and execute a new DPOA then consider talking to DHR Adult Protective Services or an attorney as a conservatorship/ guardianship may be needed. Even when the DPOA is available the principal can still act as long as they are able and if the principal wants you to act you should include them in the decision making as much as you are able. Do not sell assets of the principal to yourself or others for an amount less than fair market value or in a manner that might suggest not in the best interest of the principal. While it is probably acceptable for you to use the agent’s car to drive them to appointments (check with their insurer and the DPOA), do not use the vehicle for your own personal use.

The booklet goes into much more depth on do’s and don’ts. If your attorney can provide you with a paper or electronic copy of the above named booklet then I think it will give you a better understanding of your duties and responsibilities. The booklet is not meant to scare you off but to make sure you take the position seriously, after all your mother’s money is not yours even though you may be named in her Will. Before a Will becomes available after her death she still must live the best life possible in a manner that she would want and you have a responsibility to do your best to help make that happen.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

"No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."

Mailing address:

Ronald A. Holtsford, Esq.

Ronald A. Holtsford, LLC

7956 Vaughn Road, Box #124

Montgomery, AL 36116

(334) 220-3700

raholtsford@aol.com

 

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