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June 08, 2008


Pat Trueblood

Be aware an institution might say the power of attorney is "too old". They might want something signed within the last couple of years instead of ten years ago.

Robert Fleming, esq.


You are absolutely correct. This is one of the favorite roadblocks thrown up by banks. Notwithstanding what the bank official might say, there is no automatic aging of powers of attorney (that assumes, of course, that there is no language in the power of attorney itself terminating it after a period of time--and such language is rare). You can try saying: "think about it. If my mother continued to be incapacitated for a ten-year period, how could she ever sign a more current power of attorney?" That may not work, but it's worth a try.

Brokerage houses, particularly, are accustomed to asking for authority that is less than six months old. That comes from the notion that if you are acting as personal representative (executor) of an estate, you should be able to show that the estate was still active within the past six months. The power of attorney, by its nature, is "active" until the death of the principal, so the analogy doesn't work. That doesn't stop the brokerage house (or bank) from insisting that you should have a document that was signed within the past six months. The good news: brokerage houses, unlike banks, tend to have hierarchical structures that allow them to actually talk to an in-house lawyer who can set them straight. Usually.

Robert Fleming
Tucson, Arizona

D. Jefferson Herring, Attorney

Several years ago, the ABA Section of Real Property, Probate and Trust published a recommended paragraph for powers of attorney to deal with brokerage accounts. I downloaded that paragraph and have continusously used it, and it has worked well with brokerage houses. For whatever it is worth, I have inserted that paragraph below.

I do not know if the Section still publishes this provision. Supposedly, the ABA folks got together with representatives of the major brokerages houses to arrive at this provision. While I am still a member of the ABA and the Section, I was forced to stop all emails because I was getting scores of nuisance emails daily to attend seminars completely unrelated to my fields of practice.

Jeff Herring
D. Jefferson Herring, Attorney
D. Jefferson Herring, P.C.
144 Second Avenue North, Suite 200
Nashville,TN 37201

With respect to my brokerage accounts, to effect purchases and sales (including short sales), to subscribe for and to trade in stocks, bonds, mutual funds, options, rights, and warrants or other securities, domestic or foreign, whether dollar or non-dollar denominated, or limited partnership interests or investments and trust units, whether or not in negotiable form, issued or unissued, foreign exchange, commodities, and contracts relating to same (including commodity futures) on margin or otherwise for my account and risk; to deliver to my broker securities for my account and to instruct my broker to deliver securities from my accounts to my attorney-in-fact or to others, and in such name and form, including his own, as he or she may direct; to instruct my broker to make payment of moneys from my accounts with my broker, and to receive and direct payment therefrom payable to him or her or others; to sell, assign, endorse and transfer any stocks, bonds, mutual funds, options, rights and warrants or other securities of any nature, at any time standing in my name and to execute any documents necessary to effectuate the foregoing; to receive statements of transactions made for my account(s); to approve and confirm the same, to receive any and all notices, calls for margin, or other demands with reference to my accounts(s); and to make any and all agreements with my broker with reference thereto for me and in my behalf. My attorney-in-fact may vote in person, or by general or limited proxy, with or without power of substitution, with respect to any stock or other securities I may own. I authorize my attorney-in-fact to execute on my behalf any powers of attorney in whatever form which may be required by any stockbroker with whom I have deposited any securities.

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