My sister-in-law has power of attorney over her mom, who has advanced Alzheimer`s disease. She wants to move some stocks out of a mutual fund into a different one because it is doing poorly, and the investment company does not recognize power of attorney. How can this be?
It cannot be. This is also not the first time I have heard about it. If the power of attorney was written over three or four years ago, they do not know if it has been changed or revised, and they consider it a big risk for them. But the fact of the matter is, even if a person creates a power of attorney in 1901, it would still be valid today. The way to overcome that is two things. First, whoever is trying to use the power of attorney, can prepare something called an affidavit in support of power of attorney, whereby, under penalty of perjury, you swear that this is the power of attorney that was created and no other power of attorney to your knowledge has been created since, and I am in good faith using my power of attorney to further the benefits of the person who gave me this power. If you can present that document to the financial company and they still refuse to honor it, you will have to go to court and get an order from a judge requiring the institution to accept the power of attorney, and the penalty is they may have to pay all the fees and costs associated with obtaining this order.
So generally, what we do is to write the letter to the institution telling them that this is the valid power of attorney, based on the specific rules and requirements, and attached they will find a copy of the affidavit in support of power of attorney. If they still choose not to honor it, we will take them to court.