What are some ways to gain control?

    Published: 06-16-2009
    Views: 8,471
    Estate Expert William Conway explains some ways to gain control.

    Host: What are some ways to gain control?

    William Conway: In a circumstance of incapacity many people believe that having a power of attorney is sufficient. In my experience and I think the experience of many, I know the experience of many in realtors, many experience of anybody that works in financial institutions is that powers of attorney often do not work. They do not work because there are a number of rules that get in the way of the working.

    Financial institutions, brokerage firms and others look for powers of attorney to be of recent vintage, recent means perhaps six months old. Many institutions work for the power of attorney in and on their own forms and to be quite specific about the particular transfer of asset whether it is a piece of real property or if it is a security or other assets being transferred. So, a power of attorney written five, ten, 15 years earlier in the perspective of that financial institution is the one that they can not rely upon.

    They do not know that their power of attorney has not been revoked many years earlier. They have liability associated with that and consequently they are not willing to accept those powers of attorney in the fashion that people believe they would. Of course, the problem is the powers of attorney that are not accepted are ones that are useless. If I relied upon a power of attorney as my defense against a circumstance of incapacity or disability, I have not succeeded in the planning I thought I did. A revokable trust alternatively, succeeds and the reason it succeeds is because the nature of the trust itself. We are putting myself in control as the trustee while I am alive and well, but in the circumstance of my incapacity I appoint my wife, my husband, my daughter, my son, my brother, my sister to be the person who will be a person that will direct or control of the assets after I become incapacitated.

    Under that sort of circumstances banks and financial institutions accept the person coming into that control position because not only have the assets been transferred to the trust, but also because the person is listed as in control of the trust which in fact, holds the assets.