Although a durable power of attorney can be an invaluable New Mexico Estate Planning tool, there are many situations where a power of attorney may fall short if a person does not have other components to his or her estate plan. The function of a power of attorney is to authorize an agent to handle financial matters that may include a wide range of activities, including entering into contracts, making deposits, managing investments, paying financial obligations, and other matters. Many times a durable power of attorney is used so that the agent can manage one’s financial affairs even if the principal becomes incapacitated. However, problems can arise when a third party refuses to recognize the authority granted under a power of attorney.
One of the main reasons that a power of attorney may be disregarded by a third part is that it does not comply with legal requirements under New Mexico law. If the principal was not at least 18 and competent when the power of attorney was executed, this failure to comply with the prerequisites for valid execution of a power of attorney may provide a legitimate basis for a third party to disregard the power of attorney. Further, the power of attorney may be poorly drafted so that there is ambiguity about the nature and extent of powers and authority granted to the principal. Whether the third party is the representative of a financial institution or similar party, he or she may err on the side of caution by declining to recognize the authority granted under a power of attorney rather than risk liability for granting access to the principal’s funds.
Because a common function of a power of attorney is to designate an agent if one becomes incapable of managing one’s own affairs, many durable power of attorney forms have a “springing” provision so that they become effective in the event of the incapacity of the principal. However, banks and other third parties may be hesitant to act based on a durable power of attorney without a physician certification of incapacity. There are some institutions that will not honor a power of attorney unless it is completed on the institution’s own pre-printed form. By the time the need for the power of attorney arises, the principal may no longer be able to validly execute the form.
There are other reasons that a third party may not recognize a durable power of attorney that include situations where a long period of time has passed since the power of attorney was executed or the transaction involves a real estate transaction, but the power of attorney was not recorded. Our experienced New Mexico Estate Planning Attorneys can provide legal advice and supplemental estate planning documents to minimize the risk that your power of attorney will not be honored.
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An Ounce of Prevention or a Pound of Cure
The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.
The New Mexico Estate Planning Attorneys at Jay Goodman & Associates, PC offer a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your specific situation. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.
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