If you’re like me, you’ve seen every episode of the documentary Tiger King on Netflix. As an animal lover and estate planning attorney, the show covered a lot of issues that interest me.
The biggest estate planning issue centered around the disappearance of Carole Baskin’s husband, Don. It struck a lot of people as highly unusual that Don, through his attorney in Costa Rica, executed a Power of Attorney that contained the following provision: This “power of attorney shall not be affected by any disability or disappearance.”
The main rationale behind a financial Power of Attorney is to name someone (your “agent”) to make financial and legal decisions on your behalf, particularly as a result of some unfortunate contingency. Disability is the most common situation.
The “or disappearance” language in Don’s Power of Attorney disturbed a lot of viewers, considering Don eventually did disappear. Moreover, his disappearance has not been solved. It troubled Don’s attorney in Florida, Joseph Fritz, who said “I have, in 37 years, never seen it say ‘or disappearance,’ never have. In that respect this is terribly unusual.”
I’m not here to insert my theory about Don’s disappearance. However, such language is not terribly unusual.
In fact, the Uniform Power of Attorney Act—which has been adopted by Maryland and Virginia—defines “incapacity” to mean not only mental impairment, but also when an individual is “missing.” If your Power of Attorney is effective upon your incapacity, both Virginia and Maryland refer to the statutory definition of that term.
The D.C. Code uses the term “disappeared” in various provisions relating to Powers of Attorney and Conservatorship. The D.C. Bar even offers a template for attorneys to use to name an agent to manage their law firm. The Bar’s template uses the following language: “I intend by this instrument to create a Durable Special Power of Attorney . . . in the event of my disappearance, disability, incapacity, incompetence, or inability to act on my own behalf.”
Powers of Attorney are most commonly used if you’re mentally or physically impaired. For example: if you’re sick in the hospital, your agent could tap into your checking account to pay your hospital bills.
I like to offer a somewhat less morbid example to clients: if you’re trekking the mountains of the Himalayas and decide you want to extend your vacation, your agent could make sure your utilities get paid back home, and they could wire you money from your checking account to pay for your hotel stay.
Of course, if you decide to turn your vacation into a decade-long sabbatical without telling anyone, you might be deemed to have “disappeared.” With a proper Power of Attorney, your agent could manage your affairs in your absence.