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Whether you should provide your agent with a copy (or perhaps original) of the signed power is not a simple decision. Without a copy of the document, the agent is less likely to remember the appointment or know where to begin. However, if you give the agent a copy of the document, or an original, how do you comfortably retrieve that document if you decide to name a new agent some time in the future?

Example: “Sister, I need my power of attorney back. I’ve decided after seeing the abysmal way you have handled your finances that I have to name another person to be in charge of my money if something happens.” Thanksgiving dinner won’t ever be the same after that conversation.

Comment: You could sign a new power of attorney that voids all prior powers of attorney. Alternatively, you might sign a specific document just revoking the grant of rights to your sister. While all this might legally suffice, you might still find it uncomfortable to leave an original with your sister. It might also be rather awkward should your sister ask questions about the power or attempt to use it only to find it invalid.

Some options for handling this situation include:

•Giving a photocopy of the power to your agent.

•Giving an original of the power to your agent.

•Having your lawyer retain the original to release it only in appropriate circumstances. While this might sound convenient, there will be additional costs and complexities. How can your lawyer determine when it is “appropriate” to release a power of attorney that may grant an agent power over your finances? If the attorney is willing to do this, the law firm may want a separate agreement governing their release of the document and holding them harmless from any claim for deciding to release (or for refusing to release) the document. Having your lawyer release the power of attorney at the appropriate time may be a better route if you are close to your lawyer and she or he is likely to be aware of the need to deliver it to your agent.

•Also it is appropriate to note that, at least in some states, you can provide for the power of attorney to “spring” into effect only when you become disabled—and you can specify what that means, such as your personal physician determining you are having significant difficulty in managing your financial matters. But providing for the power only to spring into effect at such a time may not authorize the agent to act when, for example, you are on a trip and you are unable to take action that should be taken immediately.

•Incorporating a time limit on your power of attorney. This way, you needn’t ask your sister for it back—it will end. The problem with this approach, apart from it being unusual, is what happens if you are disabled in year six but the power has a seven year termination date? Your power of attorney would have to provide that the termination date would not be triggered if you are disabled prior to it occurring.

Example: You sign a power of attorney on June 1, 2010. The document states it is valid for five years, or until May 31, 2015. On April 1, 2015, you become disabled and no longer have the ability to sign a new power effective after May 31, 2015. To avoid the lapse of the power when you need it most the document would have to provide that although the power is only valid until May 31, 2015 if you are disabled before that date it will remain valid indefinitely. If that sounds complicated it is. While it might work legally, the layers of provisions may well outweigh the benefits. While this may all be feasible, it adds yet another complication to the document and may raise questions with the validation of the power of attorney.

•Posting a PDF of the document in a cloud-based “vault” that your agent can be given the access code to and request that he or she not to access it unless an emergency occurs. Your financial adviser, attorney, or CPA may offer such a service.

•Retaining all originals in a safe in your home and give the agent the information necessary to access it in an emergency. Some people prefer this since the agent is unlikely to have access to your home while you are well.

Tip: If you are reluctant to give your agent a copy of your power of attorney, ask yourself again whether you’ve selected the right person to act as your agent. If you don’t feel sufficiently comfortable with anyone, consider the option of a fully funded revocable living trust so that it will be unlikely that there will be significant assets in the purview of the agent under your power of attorney (see Chapter 9). This trust enables you to name an institution to act as trustee when you are not able to act for yourself. An institution will not abscond with your funds and has the professional expertise to deal with whatever issues may arise.

Example: Jane was recently diagnosed with Alzheimer’s. While she is capable of signing legal documents today, that may not last long. Jane has no immediate family. Should she name a neighbor she has known for decades or a close friend as agent? Will they prove reliable? If they are elderly themselves, are they an optimal choice? How can Jane really be sure that the “close” friend may not use the position of being her agent, especially when she is not competent, to their advantage? Does the neighbor or friend really want the responsibility and liability of being an agent? For many people, using a power of attorney in this fashion is really an invitation for elder financial abuse. Instead, consolidating assets in a reputable bank or trust company, in a revocable living trust that names the bank as co-trustee, is the far safer approach. Knowing when to make this type of judgment call, and even knowing that this type of option exists, is the key benefit of using an attorney. Anyone can go online and fill out a form, but few non-lawyers have the experience (not just knowledge) to consider the available options.

The question as to what, if anything, to tell and give your agent, is the type of question to pose to a lawyer who has experience dealing with these issues in a wide range of situations. It is not the power of attorney form itself that is the most critical facet of the process, but rather the advice from years or decades of experience your lawyer will add to the process in addition to whatever document you obtain.