A durable power of attorney is an estate planning tool that allows one person to manage the financial matters of another. Most people create this document with the expectation that they may be incapacitated at a certain point. They want to make sure their finances are secure when they are at their most vulnerable.
When your loved one names someone as their agent or attorney-in-fact in a financial power of attorney, they are giving them significant power over their finances. Depending on the terms of the document, an agent may be able to access bank accounts, buy or sell investments and even manage their business.
What are the requirements for an enforceable power of attorney?
Under Mississippi law, a durable power of attorney must:
- Be in writing and signed by the principal (the person creating the document)
- Have the acknowledgment of a notary public or signatures of two adult witnesses, at least one of whom is not related to the principal
- Clearly state the powers granted to the agent
- Include specific language indicating that it will not be affected by the principal’s incapacity
The agent must prioritize the principal’s best interest, act in good faith and stay within the limits of their granted authority. They must also maintain records of all transactions made on behalf of the principal.
On what grounds can you challenge a durable power of attorney?
You can challenge a power of attorney if:
- The principal was not of sound mind or lacked the mental capacity to understand the implications of signing a power of attorney.
- The agent or another party pressured or coerced the principal into signing the power of attorney.
- Someone misled the principal about the nature of the document.
- There is reason to believe that the agent acted in their own interest, mismanaged funds or did not follow the terms set out in the power of attorney.
- There is evidence of the agent engaging in illegal activities, self-dealing or financial exploitation.
Certain parties, including the principal, family members or a person with a sufficient interest in the principal’s welfare, can petition a court to review the agent’s conduct or the power of attorney itself.
It’s important to note that disputing a power of attorney can be complicated. It requires a thorough understanding of legal procedures and evidence. Working with an attorney may be necessary.
