Legal Question in Wills and Trusts in Minnesota

Re: Durable Power of Attorney

Thank you for your question regarding powers of attorney (POA) for you and your wife. You had asked whether a POA naming your spouse as attorney-in-fact with your daughter as successor is preferable since your home and bank accounts are already jointly owned.

You are correct in stating that jointly owned property can be managed by either spouse. However, it is a good idea for you to set up POAs to plan for managing other assets and situations. For example, should you become incapacitated, your attorney-in-fact can claim insurance benefits and conduct litigation in your name.

As for naming your daughter as successor attorney-in-fact, she would not be able to bypass either spouse (the attorney-in-fact) unless the attorney-in-fact dies, resigns, or is unable to serve. That does mean, however, that should either spouse die, your daughter automatically becomes attorney-in-fact for the living spouse, whether or not that person is incapacitated. If this is a concern for you, the POA could be modified to not take effect until you or your wife become incapacitated.

Finally, you mentioned that you intend to complete Health Care POAs. Minnesota law has changed in this area recently and now allows Health Care Directives, which would revoke and replace your Living Will. It is important that your new Health Care Directive properly reflects all of your wishes.

If you have any more questions, please feel free to give me a call.

Sincerely,

Luke Robinson

Chesley, Kroon, Chambers

Harvey & Carpenter, P.L.L.P.

P.O. Box 327

75 Teton Lane

Mankato, MN 56002

(507) 625-3000

Re: Durable Power of Attorney

I would not be surprised if you were to get several conflicting answers to this one. My preference is to not clutter up powers of attorney with multiple appointments. I don't see how one can tell for sure which one is supposed to be in charge at any given time. My preference is to just put one person as Attorney in Fact.

In your case I think I would recommend separate documents. One power of attorney would name the spouse, the other name the child. Then you keep them for use as needed. It's hard for this to work well unless you have a child you can trust. The child should know where the documents are, but I would advise still that you keep possession of them until they are needed.

It would really be a good idea for you to go see a lawyer for a legal checkup.

Re: Durable Power of Attorney

"We would like to name our daughter as agent on a durable power of attorney form for each of us but do not wish to imply that the power bypasses our spouses if we are still alive or competent to act. Is it necessary, desirable and/or preferable to name each other as agent with our daughter as the backup agent? " I like Mr. Kelly's answer, although you could put your daughter on as backup on the one to your spouse and just keep the other one (naming your daughter only) in the tin box in the closet where we all keep all our important papers.

"Does the law in MN assume that we already possess those powers as spouses if our mortgage is Joint Tenancy" -- answer is no. To sell or remortage real estate one needs the signature of both persons, either personally or by a valid durable power of attorney.

" and our bank and other financial accounts are joint accounts" -- since either party can draw on the account, only one needs to be competent.

"We also intend to complete a Health Care Power of Attorney form naming each other as agent with our daughter as backup for those matters as well (we already have a Living Will in place)." That is a good idea, I think, although the statutory form actually combines the two into one document of about eight or nine pages.

Sam Calvert