ESTATE PLANNING: Changing the power of attorney

2014-05-04T00:00:00Z 2014-05-09T18:20:16Z ESTATE PLANNING: Changing the power of attorneyChristopher W. Yugo Times Business Columnist
May 04, 2014 12:00 am  • 

Q: I executed a power of attorney a few years ago. I want to change the person that I named to someone else. How do I change the person? Do I need to revoke the old power of attorney and then write a new one?

A: The first thing you need to do is check the existing document to see if the POA is a current a current POA or a springing POA. In other words, does the attorney in fact have the authority to act on your behalf now or at some future time such as upon your disability?

If it is a springing POA, the attorney in fact may not have assumed his position yet, so it's fairly easy to remove him. If you want the person named as back up to serve as your attorney in fact, simply amend the POA in writing stating that the successor attorney in fact is now the primary attorney in fact.

If the POA is effective upon execution and therefore grants the attorney in fact the authority to act on your behalf immediately, you are going to have to take some affirmative steps to remove the attorney in fact.

You should start by notifying the attorney in fact that they have been removed. I suggest that you send the notice using both first class and certified mail. You want to make sure that you can prove you sent notice just in case there is a dispute at a later date. The notice is important so make sure that you can prove that you attempted to notify the attorney in fact.

If you are concerned that the attorney in fact is out there doing stuff that he shouldn't be doing, send copies of the notice to the places that you think he or she may be using the POA. Contact your bank and broker to make sure that they know that the person is no longer your attorney in fact and they should not accept his instructions any further.

Sometimes, although rarely, a POA is recorded with the county recorder's office. If you believe the POA may have been recorded, record a copy of the removal or revocation. That should address any real estate issues.

Finally, contact the attorney that drafted the POA so that he or she knows you have made changes to POA. He or she will update their file accordingly.

Finally, remember that POAs are really important documents. They are one of the arrows in your estate planning quiver. When you take it out, it can leave a big hole in your plan. If you decide that you need to revoke the POA in its entirety, you should seriously consider executing a new one.

Opinions are solely the writer's. Christopher W. Yugo is a Crown Point attorney. Address questions to Yugo in care of The Times, 601 W. 45th Ave., Munster, IN, 46321 or to Yugo's information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant or estate-planning specialist.

Copyright 2014 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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