Have you heard that one of the most important estate planning documents may be the durable power of attorney? This document can give a trusted adult the ability to manage the affairs of another, should that individual become incapacitated. If there is not a valid power of attorney in place before becoming incapacitated, then the court may appoint a guardian for the individual, and it may not be who the incapacitated person would have chosen.
With the ever-increasing cost of nursing care and assisted-living facilities, many adult children find themselves managing their parents’ financial affairs. Rather than cosign on bank accounts and property, which can have negative tax implications, a durable power of attorney can give you the power to manage your parents’ finances completely, should they become incapacitated.
If your parent is competent, the first step may be to talk with your parent and a knowledgeable estate planning attorney. Your parent can decide the scope of your rights as the agent, any exceptions to those rights, and any factors that would invalidate the document. Your attorney can also help you make sure that the document of your parent is properly executed, so that it can be effective in your state.
If your parent is already experiencing some level of dementia, simply signing a power of attorney will not work. Legally, a parent who is incapacitated cannot sign a power of attorney, so even if you talked your parent into signing the document, a judge could invalidate it.
Instead, you may need to petition the court to appoint you as your parent’s guardian. If your petition is successful, the court may have found that your parent can no longer make sound life decisions and there can be significant, long-lasting implications to this conclusion.
This can be a complicated procedure, and you may need an attorney to help you. During the process, there will likely be a hearing where medical professionals and social workers report their evaluations of your parent. Your parent may also have his or her own attorney, who will explain the guardianship process to your parent and give an opinion about whether your parent appeared to understand. Anyone can testify about whether your parent should have a guardian, and whether that guardian should be you. This also means that your background, finances, and personal history may be called into question. Thus, executing a durable power of attorney now, before health problems arise, can be a proactive step that will save you time and heartache down the road.
For more information about a durable power of attorney, please reach out to our office to schedule an appointment. We do telephone, computer, and face-to-face appointments. Our face-to-face appointments are held outside in the open air (frequently selected by clients for document signing) and inside our office conference room. We follow all CDC guidelines. Our office procedures and COVID-19 safety protocols are designed and enhanced by medical review and air quality engineering and design.