Powers of Attorneys and Trusts

The other day I was talking to a new client and he told me that he recorded his financial power of attorney with the county because he “had to since he has real estate.”  I can only imagine where he got this advice but it’s just simply wrong. It’s wrong for so many reasons. I should clarify he is a new client of mine so he did not get his bad advice from me!

First of all why would you ever want to record an estate planning document which includes all of your family member’s names unless you have to?  Though I am not overly concerned about my privacy I certainly do not go out of my way to publish my private information for the world to see when I don’t have to.

Second of all the recording could be done when the document was needed… IF it was ever needed.

Third for a power of attorney to be able to deal with real estate the power of attorney would have to be a “specific power of attorney” which mentions the real property specifically. That is, at a minimum, the address of the parcel needs to be listed and it probably should have the legal description as well like a deed.

Lastly, this client has a trust and the power of attorney has absolutely nothing to do with trust assets. It’s the trust that would deal with a trust asset.  Though this is the last point it’s probably the most important and the one people confuse the most.  Trusts deal with assets that are actually owned by the trust.  Powers of attorney, though similar to a trust, are totally different and only deal with assets that are not in the trust.

I encourage you to find a new attorney if your attorney gave you similar advice that this client received from his former attorney!


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