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The Power of Attorney: Beneficial or not? 

January 2020 | Harold E. Gerry, Jr., Esq.
As an Elder Law attorney for almost 20 years, I have been a strong advocate for having a Power of Attorney done by every client I have ever met with. I believe that a good, comprehensive, Power of Attorney is one of the most important documents anyone can have.

With the correct Power of Attorney in place, almost anything that needs to be done on someone’s behalf can be done so by the agent designated. An agent on a Power of Attorney can complete such tasks as creating and funding a Trust, transferring or gifting assets, paying bills, managing assets, revoking a Trust, etc.

Many situations have arisen wherein someone facing a health crisis had a comprehensive Power of Attorney that allowed the agent to either implement or complete the planning options needed to get the proper care in place, allow access to the Medicaid program’s long-term care benefits and/or ensure the appropriate testamentary desires were carried out.

As good and as important as the Power of Attorney is, though, it does have some limitations. Without getting into a full discussion of the Supremacy Clause and Constitutional Law, most Federal agencies are reluctant to accept a general Power of Attorney since this document is generally created pursuant to State law.

Let me be clear: Everyone 18 years of age or older should have a comprehensive Power of Attorney. However, there are times and places where certain Federal agencies such as the Internal Revenue Service (IRS) or Social Security Administration (SSA) may not accept one. If it is accepted, there could be issues where the original or a certified copy of the document needs to be submitted each time it is to be used; if not, access to funds or benefits could be hampered, making their use problematic or difficult at best.

So, what should one do? In addition to having the general Power of Attorney, anyone needing to deal with a Federal agency should have that agency’s form of a Power of Attorney completed and submitted. For instance, the IRS has Form 2848, entitled “Power of Attorney and Declaration of Representative.” Meanwhile, the SSA utilizes a system wherein a Representative Payee is appointed to receive the Social Security or SSI benefits for anyone who cannot manage or direct the management of their benefits.

If you or someone you are trying to assist requires access to or has dealings with a Federal agency, it’s important to make sure the appropriate documentation is in place. Don’t forget to have a Power of Attorney in place; just be mindful there may be times you need a little more.

If you have any questions about the matters discussed in this article, please contact your Legal Service Plan’s National Legal Office at 800-832-5182.