By: Martin M. Shenkman, CPA, MBA, JD
No, we are not talking about your being Tom Cruise's agent to negotiate a contract for Mission Impossible IV; we are talking about your Aunt Nellie just being admitted to a nursing home, and although sometimes lucid, needs help managing her affairs, and you were named the agent under her durable power of attorney to do just that. While your family is a regular Brady Bunch, you are worried that your sibs, Anastasia & Drizella, may just not feel comfy with your controlling the money that they view as their future inheritance. What can you do to help Aunt Nellie and protect yourself? Meet a lawyer to review your responsibilities under Aunt Nellie's power of attorney. The cost is probably a legitimate expense to pay from Aunt Nellie's funds. Set up a file system and diligently record and document everything. The following is a list of the tabs you should set up in a binder to keep everything organized, and what should go in each:
Power: Copies of the power of attorney you are operating under (you will need copies for every bank or other person you deal with.) Safeguard the original. Include a copy of the power on which you made annotations, explaining your role based on your meeting with an attorney.
Effective Date: Some powers of attorney are effective when signed. Others require you to have two doctors' letters stating that Aunt Nellie cannot take care of her affairs. Banks or others may have you sign a statement (affidavit) attesting to the validity of the power. Save copies in this file. It might even be helpful for you to have Aunt Nellie's lawyer prepare an affidavit for you to sign to give to people to encourage their acceptance of the power. Whatever the requirements, document that you can serve, and save the proof.
Legal Actions: If you sign a contract for Aunt Nellie (e.g. with the cable television company so she doesn't miss an episode of Survivor), copy the contract as you signed it for the binder. Make notations as to why you signed the contract (e.g., to keep Aunt Nellie entertained), and the provision in her power of attorney that gave you the authority to do so.
Checks: Copy every check you write (or get carbonless copies called safety checks) and staple the bill you paid to the copy of the check. File them in check number order.
Reimbursements: Sometimes you can not avoid paying for something yourself. Aunt Nellie needed her Twinkie fix and the corner newsstand would not take a check. You can reimburse yourself for appropriate expenditures, but keep detailed contemporaneous records and copies of receipts to support each reimbursement. Bear in mind that anytime you reimburse yourself for a cash expenditure, the siblings' lawyer will accuse you of having used the money for yourself.
Gifts Made: Many, but not all, powers permit gifts to be made. Be sure you have the authority to do so, and that you understand any limitations or restrictions. Document all gifts, why they were made, and to whom they were given. Be very careful if you make gifts to yourself or your heirs. Verify that you can with an attorney. Document everything. Carefully consider any gifts that are not equal to all heirs.
Cash: If you withdraw cash using Aunt Nellie's bank card, be sure to have receipts and contemporaneous records as to what it was spent on. While you should avoid cash, sometimes there is no choice. Many caretakers and others will be tipped in cash. Be prepared for the potential challenges later (yes, even from loving siblings). If possible, have a witness to the payments who will also sign off on the documentation.
Deposits: Keep a copy of every deposit in chronological order. Identify the source of any deposits. You should review prior bank statements and tax returns with Aunt Nellie's accountant to see what cash receipts you should expect. Make up a checklist so you can monitor them, and verify that they have been deposited. You do not want the gardener keeping the rental payments for the tenant in Aunt Nellie's vacation home because you did not know to pick it up.
Accountings: Consult with an accountant periodically and have a summary of cash flows completed, along with bank statements reconciled. Having an independent accountant do this, at Aunt Nellie's expense, will give more independence and credibility to your actions, and have you prepared to complete a formal accounting if a court ever requires it (it may!).
Good luck serving. You will get Brownie points, but remember, "no good deed goes unpunished," so be prepared.
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