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Could the power of attorney you create be challenged?

A power of attorney can be created for several different purposes. You might need a limited POA for the sale of property for which you are unable to be present, or a medical POA in which a health care agent is appointed who can make decisions for your care if you should become incapacitated. A lawyer can make sure you have covered all the bases when an attorney-in-fact has been named and the document is drawn up, because a power of attorney may not be met with universal approval, especially by certain family members.

Choose someone trustworthy

When you create a POA, you must also determine who your attorney-in-fact will be. You might have created a power of attorney for financial decisions and made your eldest son the attorney-in-fact. Your younger son, who happens to work for a major investment firm, is incensed by this choice, claiming his brother has never understood basic economics, let alone the financial world. Your daughter thinks neither of her brothers would make a good agent and is hurt because she was passed over for the role. You may even be accused of being mentally incompetent by a stepson who has never warmed up to you. Despite the mud-slinging, you believe your eldest son is the most trustworthy person in the family, so you stand firm on your decision.

Protect your power of attorney

If you believe there may be a challenge, you can take steps to protect your power of attorney, and thereby your choice of attorney-in-fact. First, make a videotape of the POA statement and confirm you intend to sign it. When the signing takes place, you should produce the statement of a doctor, attesting to the fact that you are of sound mind. Sign in the presence of several witnesses, who, at a later time, can testify you voluntarily signed the document. Finally, take your POA to an attorney to be reviewed. The attorney can later testify to your mental competency if that becomes necessary.

When to see an attorney

If your youngest son, step-son or daughter is seriously upset about your eldest boy being named attorney-in-fact, he, she or they may consider going to court to have him removed and replaced. If you have taken the appropriate steps to protect your document, you will probably have nothing to worry about. However, this is the time to turn for advice and support to a lawyer experienced with estate planning matters, powers of attorney and the possibility of a challenge being mounted.

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Bingham Legal Group PC
30100 Telegraph Road, Suite 360
Bingham Farms, MI 48025

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