Why Are Durable Powers of Attorney So Long?

Posted March 10, 2017

In theory, the durable power of attorney is a relatively simple document. All it should need to say is the following:

I, Joe Blow, hereby appoint Janet Planet to step in for me in the event of my incapacity to handle my financial and legal matters.

But in fact most durable powers of attorney run to several pages. Two nationally-known estate planners, Jonathan Blattmachr and Martin Shenkman, have even written an entire ebook, Powers of Attorney: The Essential Guide to Protecting Your Family’s Wealth, just on powers of attorney. The reason these seemingly simple documents get so long is that banks and governmental agencies often want to see that the attorney-in-fact has specific authority to take whatever action is contemplated, whether that is to trade stock, make gifts, file tax returns, or sue someone. Every time lawyers run into a problem with a power of attorney, they add a provision to their form documents to make sure that problem doesn’t arise in the future. Over time, these solutions and the specific powers they grant to the attorney-in-fact accrete and the documents get longer and longer. (This, by the way, is why most legal documents get increasingly lengthy over time.)

Sometimes the potential problems the new provisions are meant to avoid only occur extremely rarely or occurred during a short period of time and are no longer an issue, but the additional clauses in the power of attorney stay because lawyers are afraid to remove them just in case they become relevant. In many instances, especially with less-experienced attorneys using forms developed by others, lawyers don’t even know why particular wording is included in the form document, which makes them even more fearful of editing them out. None of us can know for sure what we don’t know.

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