Hi, I’m Sarah Siedentopf. I’m an estate planning and probate attorney in Atlanta, Georgia. The question I want to ask today is when you sign a power of attorney, should you have it valid immediately — right when you sign it — or should you wait and have it validated only when you’re incapacitated?
Unlike many of the questions I answer, this one is a personal choice question, and there is no right or wrong answer. When I sit down with clients and we do a power of attorney, we talk about whether we want it to be valid right away or wait. There are advantages to each choice. If it’s valid right away, there’s no question — when you show someone the document it says it’s valid today, you see the signature, and you’re good to go.
There are enough problems with banks and other things accepting a power of attorney that I often think that this is the way to go because you don’t want to give them one more objection to put in. On the other hand, there is some feeling of safety of waiting, and you say “I don’t need someone to handle my affairs rights now. I’m fine. I don’t really want my kids to have access to my bank account. I’m fine.” And so you wait and you say this power of attorney is only valid upon incapacity.
What that means, generally, is that you have to have a doctor actually write a letter stating that you are incapacitated. The problem with this version is that doctors hate to do this. It can be quite difficult to get a doctor to certify that you are in fact incapacitated, and sometimes you need things in a hurry, and you can’t wait around to find that out. So, there are two choices. Neither of them is right or wrong.
There’s maybe a feeling of safety knowing that you have it right away, there’s no question of its validity, no extra hoops to jump through, and on the other hand, a feeling of safety if you wait and say “I’m fine. Nobody has access to my bank account. We’ll just wait and see when it’s needed.” So, this one is a personal choice, and there is not a right or wrong answer, just know the pros and the cons. If you’ve got any questions about power of attorney, I’d love to talk to you. Thanks.
