Preventing Challenges to Your Financial Power of Attorney

These tips may ensure that your financial power of attorney is accepted.

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If you think someone is likely to go to court to challenge your durable power of attorney for finances (sometimes called a financial power of attorney) or may claim that you were coerced into signing it, you can take several steps to head off problems.

See a lawyer. You may want a lawyer to review your power of attorney for finances if you've created it yourself. An experienced estate planning lawyer can answer questions about your durable power of attorney and about your other estate planning documents as well. For example, you may also be expecting challenges to your will, a trust, or health care wishes. You can ask a lawyer about all of these issues.

The point is to have the lawyer put your fears to rest by confirming that your estate plan will hold up under the challenges of your stubborn relatives. Your attorney can also testify about your mental competency, should the need arise.

Sign your document in front of witnesses. You can sign your document in front of witnesses, even if your state does not require it. After watching you sign, the witnesses themselves sign a statement that you appeared to know what you were signing and that you did so voluntarily. If someone later challenges your competence, these statements will be strong evidence that you were of sound mind at the time you signed your document.

Get a doctor's statement. You may want to get a doctor's statement around the time you sign your durable power of attorney. The doctor should write, date, and sign a short statement saying that he or she has seen you recently and believes you to be of sound mind.

Attach this statement to your power of attorney document. Then, if necessary, your agent can produce the statement as proof that you were of sound mind when you signed your power of attorney.

Make a videotape. You can also videotape a statement of your intent to make and sign the durable power of attorney. Such a step should not be necessary, but going to this length may further minimize the chances of a successful challenge to your competency. If you do make a videotape, keep this tape with your power of attorney document.

Warning Be warned that using a videotape may work against you in some circumstances. The person challenging your power of attorney document will want to use any visible quirks of behavior or language as evidence that you were not in fact competent when you made your document.

For more information on durable powers of attorney for finances, see How Financial Powers of Attorney Work. To learn more about about creating a estate plan to protect your loved ones from legal hassles and financial uncertainty after your death, see Plan Your Estate, by Denis Clifford (Nolo).

by: , J.D.

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