Recently in Power of Attorney Category

June 3, 2011

Surgery and Procrastination

surgery.jpgSo, I have a weird job in that I, literally, talk to people about getting their estate plans up to date many times a week. And I've done this for TEN YEARS. Over and over, people tell me that they've been procrastinating and feel badly that they haven't gotten things taken care of. And I listen. In fact, my first question is almost always what prompted my clients to finally make the appointment and get the job done. It's almost always one of these four things:

  • An upcoming trip.
  • A scary diagnosis or test.
  • A death in the family or a death of a friend.
  • The birth of a child.

Let's face it, these are the things that get our attention in a deep way. They make mortality real and make us want to do what we can to get things in order. Until something like this grabs us, there are always 200 other 'important' things to capture our time and energy.

And here's my confession: despite my professional focus on estate planning, my family's estate plan has been out of date for at least four years! Really. Our guardian got divorced; her kids grew up to not get along with mine; our financial situation changed drastically. Every single thing about the plan wouldn't work.

And guess what? Do you know what made me fix it? It certainly wasn't because I knew we should. It was reasons one and two on the above list. Not only had we planned our first family trip that required airplane travel to a distant and slightly tropical local, but the week we got back my husband faced major spine surgery. Nothing like filling out hospital admittance papers to get those mortality juices flowing.

So, we redid our plan. We changed our guardians. We simplified our trust for tax planning. We updated our Durable Powers of Attorney and our Advance Health Care Directives. And it felt GREAT to finally fix it. Next up: the earthquake kit, also woefully out of date.

Believe me, I get it if you can't focus on estate planning right this second. But, please, next time life reaches out and grabs your attention, jump on it. You'll feel better, I can almost promise.

April 10, 2011

Durable Powers of Attorney: Not Dead Yet Documents

Will being signed.jpgDear Liza: My brother died a few days ago and hadn't updated his will since the 80's. His wife has Alzheimer's. They named each other as executrix, however they did durable POA on each other naming my sister-in law's cousin. Do we need to go to court to be able for her(representing my sister in law) to access the deceased accounts that are in his name only? Like so many of the excellent questions that I get on this blog, the answer is, I'm afraid, "It depends." Your sister-in-law is the executor of your brother's Will. Your sister-in-law is incapacitated by Alzheimer's. So, you are correct in looking to her Durable Power of Attorney to see who is legally authorized to act on her behalf. I always tell my clients that the Durable Power of Attorney is the "not dead yet" document--for those who grew up, like I did, watching Monty Python, you'll get the reference. My point is that a POA is to be used when the Principal, the person who signed it, is not dead, but unable for some reason to manage their own affairs. You do not need to go to court for the Agent (your sister-in-law's cousin) to have authority to act for your sister-in-law with respect to her assets, provided the POA is valid and authorizes her to do so.

But, here's where it gets a bit more complicated: the assets in your brother's name may need to go through probate before they can be transferred, or used for, his wife's benefit. He's dead, so his POA no longer is the controlling document (the Will is). What you need is someone legally authorized to act on behalf of your brother's estate--and that depends on whether or not you need a probate. If you do, the court has to appoint that person. If you don't, your sister-in-law's cousin may be able to act on your sister-in-law's behalf under that POA, but only if the POA authorizes such action.

The necessity of a probate depends on how much he had, where you live, and what his Will says. You need to find out what the 'small estates' procedure is for your state--in my state (California) assets worth less than $100K in total (with an exception for real property which I won't get into) can be transferred without a probate procedure, but that limit is different in each state. It also matters what your brother's Will says--did he leave everything to his wife? Did he give it to her outright or in a trust? This will also determine whether or not a probate is required and what kind of probate (many states have an expedited procedure for surviving spouses). If a probate is required, your sister-in-law's cousin could petition to be named as the executor, since your brother's wife isn't capable. But again, it depends whether he named a second choice in his Will, and whether or not that person wants to serve. 

 If it turns out that your brother's estate doesn't require a probate, your sister-in-law's cousin, acting on behalf of your sister-in-law as her Agent under the POA, may be able to transfer the assets, but you'll need to use your state's small estates procedure to do that and the POA would have to permit such action.

 It sounds like consulting with an attorney would be worth it, since you've got several issues to unravel. Good luck.

March 23, 2011

What to Do with Power of Attorney and Health Care Directive?

courthouse.jpgDear Liza: I created the Durable Power of Attorney and Health Care Directive (Living Will and Power of Attorney) documents using Quicken WillMaker software.  I recognize that I at least need to have them signed/notorized by the parties identified in the documents.  Now what do I do? Am I required to register these or send these documents to a local authority to make them "official"?  I'm sure it's more than just having them saved in my safe deposit box.  So, guess what? Actually you generally DON'T record these documents or register them with any state authority. The only time I've ever done so is when a client needs to sign a property deed using their authority as an Agent under a Power of Attorney--in that case, you need to record the Power of Attorney in the same county as you've recorded that deed. But, otherwise, you can give a copy of your Health Care Directive to your doctor and a copy of your Power of Attorney to your bank (if they'll accept it). You definitely should make sure that your named Agents have copies. These documents, which give a third party the power to act on your behalf if you're unable to do so, are generally simply used when needed. If your Agent for Property, for example, needs to transfer money from your bank account, they'd take the Power of Attorney to the bank at that time and get the job done; if your Agent for Health Care needs to make medical decisions for you, they'll need to show the Health Care Directive to the hospital or doctors in charge of your care. I do know of two states that require a Durable Power of Attorney to be recorded to be valid upon your subsequent incapacity: North and South Carolina, but unless you live there, these documents do not need to registered to be 'official," just properly signed and notarized (or witnessed, depending upon your state's rules.) Nolo does a really great job at keeping up with the rules in all 50 states, so I'd also check WillMaker's help section to see if it has specific rules for your state.
January 26, 2011

Powers of Atty Don't Work After Death

Hello Liza, I have a question regarding a power of attorney the was issued sometime in 1981.  Unfortunately my grandmother did not keep a copy and she has not been with us for about 10years now.  The notary who issued the power of attorney is also gone.  Are there copies and are they kept somewhere locateable.  I need to produce a copy to an attorney overseas who is doing some work for my family.   I have no idea why anyone would need a power of attorney for someone who has died so long ago, unless it is to document a long-ago transaction.. A Power of Attorney is a document that authorizes an Agent to act on behalf of someone (the Principal) who is alive, but incapacitated in some way, or who authorizes the Agent to act of their behalf for another reason. That authority, however, terminates upon the death of the Principal. After there's been a death, it is a Will that authorizes an executor to act on behalf of the now dead person. I find that my clients frequently are confused by this and try to use a Power of Attorney to write checks to pay for things like last illness expenses and funeral expenses. They should NOT do this, as they legally have no authority under that document the minute the Principal has died. And there's no central registry for Powers of Attorney, if you can't find it, nobody can.
October 6, 2010

What should I do to help my Dad now that he's getting older?

old dad.jpgDear Liza: My father is 80, and in failing health. I don't know what I should do to be able to take care of him if he gets sicker. You need to get your father to sign a Durable Power of Attorney for Property Management and an Advance Health Care Directive. Don't put this off. These documents make it possible for you to take care of your Dad if he can't take care of things himself. 
The Power of Attorney allows you to pay his bills, manage his accounts, and take care of his property (like paying his rent, hiring a gardener, or getting an apartment cleaned). The Advance Health Care Directive (in some states this is called a Durable Power of Attorney for Health Care) allows you to make medical decisions for him, like what kind of medical procedures, what hospital, or what end-of-life measures he does or doesn't want. If your Dad trusts you, it can be very helpful to have a joint checking account with him as well. A shared account makes it even easier to write checks for his benefit, but it's not always the best solution because it means you would have access to his money in that account. Don't wait until he's too sick to sign these documents or open this account because then you'll have to go to court and get an adult guardianship or conservator appointed--which is more expensive, more public, and more time-consuming. These documents are available online or at local senior centers and are drafted by estate planning attorneys as part of a comprehensive estate plan--which your Dad should also put in place, but let's get your immediate needs figured out first. For more information on powers of attorney and living wills, see Nolo's Estate Planning Center.

April 21, 2010

Study Shows that Advance Directives Help Elders Get the Care They Want

A recent study in the New England Journal of Medicine found that one in four elder adults need someone else to make decisions for them at the end of their lives.

"The results illustrate the value of people making their wishes known in a living will and designating someone to make treatment decisions for them, the researchers said," The Associated Press reports. "In the study, those who spelled out their preferences in living wills usually got the treatment they wanted. Only a few wanted heroic measures to prolong their lives.

As summarized in the LA Times: Those who requested limited care at the end of their lives received it most of the time. The study used data from the long-running Health and Retirement Study, which surveys adults ages 51 and older nationwide. In analyzing data from people ages 60 and older who died between 2000 and 2006, researchers found that of the 398 incapacitated people who had used a living will to request limited care at the end of life, almost 83% received it.

For a guide to making informed decisions regarding elder care, see Long-Term Care, by Joseph Matthews (Nolo).

April 17, 2010

Presidential Memorandum on Patient's Right to Designate Visitors

This week President Obama issued a memorandum to Kathleen Sebelius, the Secretary of Health and Human Services, that asks the Secretary to use her rulemaking authority to require all hospitals that accept Medicare and Medicaid patients to respect the wishes of patients with respect to who should be allowed to visit them.

It directs that hospital rules should make it "clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy. You should also provide that participating hospitals may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability."

This is great news for couples in non-traditional relationships, as well as widows and widowers, and really anyone who needs the love and support of non-family members while ill. And it makes it especially important (although it has always been especially important) for those who want to designate loved ones as their health care agents to complete valid Advance Directives or Health Care Proxies so that these designations have the force of law.

Read more about advance directives in Nolo's article Living Will, Power of Attorney, or Advance Directive? .

April 7, 2010

Hospice: Don't Wait for the Doctors to Bring it Up

One of the many weird experiences I had during my father's final illness was the tragic disconnect between my father's actual condition and the attitude of the doctors who cared for him. My father was emaciated, with a collapsed left lung, advanced coronary heart disease, and a chronic neurological condition that was causing his nerves to stop working. Bad, right?

But despite our repeated attempts to get SOMEONE in the ICU to listen to our requests for a discusssion about when it was appropriate to discuss palliative care (treating a patient's discomfort, but giving up on aggresive treatment of the underlying condition), we got nowhere. I mean it was like we were speaking a completely different language.

The one remotely sympathetic doctor promised us that if, "he felt he was just moving the pieces around he'd let us know." That was excellent, except 2 days later that doctor was out of the ICU rotation and we never saw him again.

And guess what? After almost a month in the hospital, "moving the pieces around" was pretty much all that happened. In the end, they discharged my father to a nursing home in worse condition that when he entered the hospital -- still with a collapsed lung and now unable to swallow. Pretty depressing. And still, the main doctor insisted my father was "cured."

What do they teach in medical school? Denial?

If you are caring for someone who is very ill, and getting nowhere with the doctors, find your local hospice and get their help. Don't expect the doctors to tell you when it's time. Find out if there's a palliative care program at the hospital and get in touch with them, aggresively if possible. (Sometimes the doctors don't want them involved, Argh. It's like the Twilight Zone.)

For a detailed discussion of hospice care, see Long-Term Care, by Joseph Matthews (Nolo).

June 22, 2009

Fake Checks and Sucker Lists -- Scams

From the Wall Street Journal comes a tale of how an elderly, well-educated man fell victim to fraudsters who lured him into writing checks for a variety of scams. In less than one year, he'd sent out $23,000 worth of checks -- despite repeated efforts on the part of his family to get local law enforcement and others involved. Finally, the victim granted his son a power of attorney to manage his finances -- but even then, he kept writing checks for scams.

Scammers were extremely effective in gaining his trust, preying on his isolation to gain access to his confidential financial information. Worse, once he had gotten involved in a few of them, his name ended up on a "Sucker List" that was sold to other scammers, leading to an avalanche of other fraudulent offers.

One scam, in particular, has gained in popularity: a fake check, purporting to be an advance payment for winnings to come. The victim cashes the check, sends the cash to the scammer, and then is on the hook when the check bounces a few days later.

If your elderly relative is getting such calls and offers, here are some helpful tips from the article:

For more information on elder fraud and how to prevent it, see Long-Term Care, by Joseph Matthews (Nolo).

May 13, 2009

Not Munchkins, too? Seems Over the Rainbow Somehow

rainbow.JPGIn what's starting to seem like a series on the ways in which powers of attorney can cause heartache -- or worse, elder abuse -- comes a story out of St. Louis. The heirs of one of the last surviving Munchkins from the film The Wizard of Oz, Mickey Carroll (real name, Michael Finocchiaro), are suing his caretaker, Linda Dodge, claiming that she and others took advantage of the actor in his final years.

The heirs claim that Mr. Carroll, who died Thursday, May 7, signed powers of attorney transferring power over his property and health care decisions to Dodge when he was unable to understand what he was signing. They further claim that Dodge then kept him isolated, spent his assets, and kept the money that Carroll made from appearing at events.

Dodge counters that the dispute is just a "family squabble" and that she took good care of Carroll.

To learn more about financial powers of attorney, see Nolo's article Financial Powers of Attorney: Do You Need One?.