Free Durable Power of Attorney: Further Thoughts

by Jerrold Bartholomew

Mr. David Goldman has raised some interesting points regarding the free durable power of attorney posted here and free durable power of attorneys generally. There are many problems with such documents and I have mentioned them in the previous post. Above all, you should certainly understand that any decision you make to use such documents will be your own and cannot be based upon anything written here. Mr. Goldman takes the argument a bit further. The first point he makes is that one should read carefully to be sure “free” documents are in fact free. He found a “free” power of attorney form elsewhere that only revealed in the fine print that you would be charged $19.95 per month for downloading the document.

Mr. Goldman’s second point is that the durable power of attorney that was purportedly adapted for his Florida had some significant problems under Florida law:

[The free document] allowed me to simply revoke prior designations by putting a line in my document. Anyone who has been to a Florida Estate Planning Lawyer knows that to revoke a valid Durable Power Of Attorney one must file a revocation in the county where they live.

Michigan has fewer constraints on durable power of attorneys, but one must wonder why and for how long this may be the case. A durable power of attorney is a dangerous document for a variety of reasons and recording the document and any subsequent revocation makes some sense. This is the law in Florida, where it is arguably necessary to have a more fully developed body of law on the subject. Michigan’s comparatively lax standards may need to be tightened as the state’s population ages and the issues common enough to reach the attention of our legislators.

A power of attorney is only effective to the extent that it is accepted by institutions. Home made documents or free documents from the internet may raise enough suspicion that an institution will not accept them.

The nightmare scenario that I can imagine with a free power of attorney or any document is that it might not work for some reason. Irregularities with the signatures or imperfections in the enumerated powers could cause a document to by rejected at a critical time. And at that point the family will find themselves heading to probate court and paying hourly for an attorney’s services.

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