Why your existing Power of Attorney document may not work

A colleague recently posted a warning on a forum of Connecticut Estate Planning attorneys that may affect your estate planning. To paraphrase, the warning informed us that a local branch of a large well-known bank had just denied the use of a Connecticut Statutory Power of Attorney to the daughter (and named agent in the Power of Attorney) of his client. She needed to open her mother's safety deposit box, and the Bank would not permit her to do so.

The reason why she was denied was because the Statutory Power of Attorney does not say anything about safety deposit boxes, and the Bank refused to let the daughter rely on the wording in the statutory form that gave her the power to handle "all other matters" besides the standard powers explicitly named in the document.

Why is this a problem? Well, there are a couple of issues. First, you may not be aware, but there is no current law that requires any Bank or financial institution in Connecticut to accept the Statutory Power of Attorney. Second, the Connecticut Statutory Power of Attorney is a short document that leaves much up to the interpretation of the Bank or financial institution. (Note: another reason why the Power of Attorney is not accepted is if the Bank or Financial Institution will not accept a document that is too old, which could be 1 year, 2 years, or whatever time frame the Bank or Financial Institution deems acceptable).

The result of this is that if your Power of Attorney is not accepted or is not interpreted in a way necessary for your agent to do the job necessary to take care of you, we may be forced to go the court for assistance. The court may require a conservatorship, which is what myself an some others refer to as "Living Probate. (Note: "Living Probate" is not a legal term - it is just a title that some of us use to not-so-affectionately refer to conservatorship.)

Living probate is where someone is given the power to take care of another person while that person is incapacitated (which will often end up being for the rest of their life), but only under the oversight of the Probate Court.

Many people want to avoid Living Probate, because it can be costly, and the formalities of requesting permission to take care of your loved ones can be time-consuming and burdensome. Also, you should be aware ahead of time, that there is no guarantee that the agent named in your Power of Attorney will be named Conservator by the Court. You should also be aware that you may not be taken care of they way that you personally want to be taken care of if you rely on the court to make these kinds of decisions for you. Once you are a conserved person, these decisions are ultimately the decisions of the Probate court, and this completely defeats the purpose of why you created the Power of Attorney in the first place.

So, if you want to avoid Conservatorship in Connecticut (or what I call "Living Probate" in this article), you should take the time to evaluate with your estate planning attorney whether or not your Power of Attorney is likely to work when you need it most. If you need assistance with this review, feel free to contact me for a consultation. Click here for my contact information on our website.

Categories: Power of Attorney