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Five Power of Attorney Myths…

Five Power of Attorney Myths…

FIVE POWER OF ATTORNEY MYTHS

Powers of attorney are documents where a person names a person (their “attorney”) to make healthcare and financial decisions for them if they are incapacitated.  Such incapacity could be temporary or permanent.  Some powers of attorney are drafted so that a person gives another person power to do something because they cannot.  An example would be giving your adult child power of attorney to sign closing documents for the sale of your home because you live out of state.

Power of attorney lawyer O’Fallon, Missouri can help you draft these very important documents which are a cornerstone of any estate plan.

There are a few myths about these documents and here are five of them:

  1. Any Power of Attorney Form Will Work

The Web is an all too easy place to find a form for anything these days.  However, with a power of attorney, every state has different rules and statutes to make the document legally binding.  Forms online are often too general, do not contain details that are appropriate to your specific situation and are ambiguous.  An even bigger problem is that by the time you discover the form document you printed doesn’t work, it’s too late.  See below.

  1. You Can Sign a Power of Attorney At Any Time

Many people are unaware that you have to be mentally competent in order to create a power of attorney.  However, very often a person needs a power of attorney because they are no longer competent.

Unfortunately, if that person is incompetent, it’s too late anda court has to determine whether the person should have a guardian and/or conservator appointed.  It’s a much more dragged out process, it’s costly and can be challenged by others.

Bottomline, if someone you know is in need of a power of attorney, don’t wait.  Act quickly before they lose competence.

  1. A Durable Power of Attorney Is Still Valid After Death

A power of attorney allows a person to make decisions for another only as long as they are alive.  Once a person passes away powers of attorney are invalid.  At death, the operating documents are the person’s will and/or trust.

For a healthcare power of attorney O’Fallon, Missouri, the last thing the agent can do is arrange the cremation or burial wishes of the deceased.  This is called the Right of Sepulcher.

  1. A Power of Attorney Allows a Person to Do Whatever They Want

A person chosen to be a power of attorney has a fiduciary duty to the principal, the person who gave them authority.  That means they have to act in the principal’s best interests at all times, even if it’s not stated in the document, which it usually isn’t.

It’s important to note, however, that fiduciary duties are broken all the time.  Therefore, it’s important that a person choose a trustworthy individual to be there power of attorney.  It also helps to name someone who knows a bit about financial matters and you know will act and act properly.

  1. If You’re Married, Your Spouse Is Already Your Power of Attorney

When it comes to a power of attorney, being married doesn’t automatically make your spouse your agent.  That doesn’t mean they can’t be your power of attorney but they’ll need to be named so in the document, just like anyone else.  You’ll also need alternates in case you and your spouse are both incapacitated at the same time.

For healthcare decisions, if you don’t have a healthcare power of attorney, you spouse is considered your first next of kin and can make decisions above anyone else.  But the next of kin after your spouse may not be your choice, so it’s necessary to create a healthcare power of attorney.  In so doing, you’ll also create a much needed healthcare directive, sometimes referred to as a living will or advanced directive.  This document provides end of life instructions about medical treatment you either would or would not want to have withheld if a doctor determines it can’t heal you.

Oscar Nominated Film Highlights Guardianship Issue…

Oscar Nominated Film Highlights Guardianship Issue…

OSCAR NOMINATED FILM HIGHLIGHTS ISSUES FOR GUARDIANS AND TRUSTEES

            The movie “Manchester By the Sea” recently garnered an Oscar award for Casey Affleck, who won “Best Actor”.  In the movie, he plays a man dealing with the loss of his older brother who soon discovers he is the backup guardian and trustee for his nephew.  The guardianship in the issue mainly plays in the background but it highlights what I consider to be a common issue for people who’ve lost a loved one and are suddenly thrust into the role of taking care of legal affairs for the deceased.

The struggles of Affleck in the movie are familiar ones for people who’ve been in that position.  His character is shocked to be in charge, never actually expecting to serve as guardian and trustee.  He struggles immediately to straddle the line between the unfamiliar role of assertive father to his nephew while also trying to find middle ground between the needs of the nephew and his own life.  In particular, Affleck struggles with the prospect of relocating his life back to a place that he left for good reason, all in service of his brother’s wishes.

He struggles with the emotional details of arranging the funeral of his departed brother, including having to delay the burial because it’s the middle of winter.  He has to delay his own grieving process to assist the nephew with his.

It’s actually these struggles that make the movie so moving and well done.

I rarely find myself impressed with how Hollywood portrays legal issues on screen.  From the imaginary fiction that the death of every person require a dramatic reading of their will at a cramped law office to the ridiculously dingy and dim lighting of New York city courts in “Law and Order”, Hollywood mostly fails to find a middle ground between reality and fantasy in its portrayal of legal matters.

This movie is different in that respect.  It captures the essence of the pain of dealing with death, from the obvious standpoint of emotion but also with the pesky details that have to be covered when it happens.

In my own practice, the reality of how my clients choose people to be in charge of their estate plan often takes quite a bit of time with clients.  Part of that reality is a suggestion from me that my clients actually talk to the people that they name as guardians, powers of attorney, trustees and executors.  Seems like common sense but it’s surprising that often people don’t discuss these matters.

Is that a role the chosen person will actually fill if necessary?  Do they have a life now that would allow for time to be effective if they were suddenly the legal guardians of your children?  Are they being chosen just because they’re a relative and nearby?  Are they too old already to serve if the time to serve was a decade away?  Do your children have a close relationship with the person you chose or is it just you that is close to that person?

I will give away one secret about the movie:  Casey is a better actor than his brother.

 

 

TERMS USED IN MISSOURI GUARDIANSHIP AND CONSERVATORSHIP

One of the things that I enjoy the most about practicing in the area of probate matters is helping families get appointed guardian and sometimes conservator for their children with special needs or an elderly parent.  It’s a rewarding process to assist a family with these types of cases and to see what a difference it makes in the person’s life.

There are a variety of terms used in the process of obtaining guardianship and conservatorship and this article covers not only the terms but their definitions*.

Here they are:

Adult – A person who has turned 18 in the state of Missouri.

Conservator – A person or corporation that has been appointed by the court to care for an have custody of the property and finances of a minor, elderly or disabled person.  This person oversees and makes decisions related to the financial affairs of the person.

Disabled Person – A person who is unable by reason of any physical or mental condition to receive and evaluate information or who lacks the ability to communicate decisions needed to manage his financial affairs and resources.  A person can also be partially disabled.

Guardian – A person appointed by the court to represent a minor or an incapacitated person.  A limited guardian is a person whose powers are limited by the court to only certain functions.

Guardian ad litem – A person appointed by the court to represent a minor, incapacitated person, a disabled person or unborn person in certain cases.  The guardian ad litem or “GAL” is appointed for a limited period of time or for a specified purpose.  In many guardian cases, the GAL is an attorney appointed by the court.

Incapacitated Person – A person who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person is unable to provide himself with food, clothing, shelter, safety, or other care that would prevent physical injury, illness, or disease from taking place.  This term includes partially incapacitated person.

Least Restrictive Environment – The residence of an incapacitated person which imposes on the ward only such restraints which are necessary to prevent him from injuring himself or others and which provides him with such care,  habilitation and treatment as is appropriate considering his physical and mental condition and financial means.

Manage Financial Resources – The ability to obtain, administer, dispose of real and personal property, business property, benefits, income or property; or to provide for the care and support of yourself or anyone under your care by ordinary skills and intelligence based on training and education.

Minor – Any person under the age of 18 in Missouri.

Partially Disabled Person – A person who lacks some, but not all, of the abilities necessary to manage his financial affairs.

Partially Incapacitated Person – A person who lacks some, but not all, of the abilities necessary to provide himself with food, clothing, shelter and other essential care.

Protectee – A person for whom a conservator or limited conservator has been appointed.

Respondent – A person who is alleged in a petition to be incapacitated or disabled.  The term is used in written notices of hearing of guardianship or conservatorship and during the court proceedings.

Ward – A minor or an incapacitated person for whom a guardian or limited guardian has been appointed.

*These definitions can be found in the following Missouri statutes:  RsMo. 475.010 and RsMo. 1.202.

A Guide to Caretaking for an Elderly Parent: Part 1 – Estate Planning

A Guide to Caretaking for an Elderly Parent: Part 1 – Estate Planning

A Guide to Caretaking for an Elderly Parent: Part 1 – Estate Planning

One of the first steps a person caring for their elderly parent should look into is whether they have an estate plan.  Do they have a will?  Is there a financial power of attorney?  Does Mom have a healthcare directive or living will?

These are just a few of the questions that Part 1 of my blog post series “A Guide to Caretaking for an Elderly Parent” will discuss.

But first, a reality check.  People in your position often feel embarrassed that they don’t know about Mom or Dad’s finances, the specifics of what medications they take or where they do their banking.  They also feel inadequate that they are not doing enough.  Take solace in knowing that this is very normal.  There is no course in college or many ways to prepare for suddenly becoming the parent for your own parents.  That’s just how it is.  You’re going to need to get used to the fact that this is all new, that’s it’s all happening fast and that you can make mistakes and learn from them.  It’s just like parenting really.  There’s the plan and then there’s life.

Okay, with that out of the way, the first step you need to take is to review what legal documents your parent or parents have put together as part of their estate plan.  Look around the house, ask their financial advisor.  Are you the power of attorney for Dad?  Where is the document?  I advise most clients that I do estate planning for to keep their documents in a place that their family can find them, rather than locked up.  Start with a search with that in mind.

If your parents don’t have any planning, the next step is to meet with an estate planning attorney like myself so they can  determine whether Mom or Dad (or both) have capacity to create an estate plan.  That is, do they have the legal ability to make and understand a power of attorney, a will, a living will or a trust?  An attorney can make that determination after meeting with them.

If they can make an estate plan, get that done as soon as possible.  You’ll need the power of attorney to help them do things like banking, dealing with doctor appointments and filing taxes.

If they do not have capacity, the attorney you meet with may suggest that you get guardianship and perhaps conservatorship over your parent.  That means that you will need to file paperwork in the court where they live to be appointed as the legal decision maker (guardian) and financial decision maker (conservator) for them.  If Mom does not have capacity, a doctor will indicate that by completing documentation supporting your guardianship petition.  The downside is that this may take a couple of months to get resolved.  However, once Letters of Guardianship and Conservatorship are awarded, you may assist your parent with whatever they need.  You are legally in charge of all the decision making related to their lives.

In Part 2 of “A Guide to Caretaking for an Elderly Parent” we will look at a crucial issue:  does Mom or Dad stay at home or do they need to go into long term care?

Family Fighting Over Powers of Attorney…

Family Fighting Over Powers of Attorney…

FAMILY FIGHTING OVER POWERS OF ATTORNEY

Squabbles over who can act on your parent’s behalf through a Power of Attorney and the decisions made in that role can cause problems within any family.

Even when mom or dad plans ahead and creates the Power of Attorney (POA) legal document before they’re impaired by a health condition, there can be ongoing strife among family members.

Sometimes the decision of who to appoint in the Power of Attorney role, from the parent’s standpoint, is very clear and easily made. Parents will put their faith in the oldest child, or choose one child over another based on who lives closest or whom they trust because of their skills, especially with financial decisions.

In my own practice, I often see years of responsible living by one child making all the difference when it comes down to deciding who should be in charge.

In other cases, a parent is suspicious about their child and doesn’t trust them 100 percent with their money. Sometimes if the oldest isn’t chosen, there’s emotional backlash toward parents and siblings because they are insulted by the decision.

In Missouri., multiple people can be appointed Power of Attorney.  The downside to selecting multiple people is that can result in arguments later, if they cannot agree on a decision.  Luckily in Missouri, we allow separate Powers of Attorney for healthcare and financial decisions, so the duties can be separated between siblings.

In some families, having a child in the healthcare field as a doctor or nurse makes it very easy to decide who should be in charge for healthcare decisions in a power of attorney.  The same is true for families with a child who is an accountant or financial advisor.  They make easy selections for who should be in charge for financial decisions in a power of attorney.

Be aware, however, that even if the appointment of POA is smooth and didn’t involve much gnashing of teeth, that doesn’t mean bickering won’t begin once the person granted POA assumes duties related to parents’ financial and medical decisions. Many times, the challenge to the POA happens after the parent passes away, when transactions and other decisions by the POA are second guessed by the other children.

While the parent is still alive, a sibling may try to trump the person appointed POA by saying their parent was incapacitated when making the decision. When that happens, it can result in an expensive guardianship fight in court.

Here are other common situations seen by elder law attorneys:

“The Sibling Rivalry” : An ongoing sibling rivalry can chip away at the “power” that someone granted Power of Attorney holds and cause kids to argue over daily and long-term decisions. When the siblings don’t trust the person granted POA, what I see most often  is constant questioning about decisions. One or multiple siblings may appear to be always on the POA holder’s back, challenging each health care and financial decision.

“Unwilling To Let Go” :  The POA holder must act in the best interest of the person they are representing, even when it comes to making those tough health decisions.  If not, they can be sued.  Having handled these types of cases on both sides, they can be nasty, protracted and expensive.

“Financial Feuds” :  Once siblings start to question what is happening to their ineritance, the battle over finances heads to court, and it can happen whether the parent is alive or has died.

In a frequent scenario, the person appointed POA may decide to pay themselves back for the expenses of caring for a parent, such as driving them to doctor’s appointments and buying food or medications.

In one case I had when I practiced in New Jersey, the only daughter was appointed POA and took care of her mother for years, even as her health sharply declined.  Two brothers, who lived out of state, questioned everything she did, although it was very clear that Mom had decided to reward her daughter in her estate plan by giving her a large share of the estate.  The brothers were incensed but it was clear that years of neglect by her sons had upset her and that she recognized that her daughter going above and beyond and the sacrifices she made for years in taking care of her and making sure her every need was met.

One recommendation I make to clients is that they contact an attorney before the damage within these families becomes permanent.  Often an attorney can act as a buffer between the two sides and bring everyone together.   This not only may salvage the long term relations among family members, but save a lot of emotional turmoil and hurt feelings.