How Can a Power of Attorney Mistake Leave You Penniless?
Smiling woman avoids power of attorney mistakes

How Can a Power of Attorney Mistake Leave You Penniless?

Just before Dorothy Jorgensen’s husband died of cancer, he altered his power of attorney and designated one of his relatives. That relative used the power of attorney to withdraw everything but a few bucks, reports WPRI.com in the article “Son questions power of attorney after mother’s bank account is drained.”

“When I went to pick up a prescription for my mother, there was insufficient funds to pick up a prescription,” Dorothy’s son, Gene Weston, said. “I can’t believe that someone would do that to an elderly woman.”

The couple had been married for almost twenty years. Both had added money to the account.

“My mother is still alive, and my mother needs to continue living,” Weston said.

The son called the police, because he claims there’s no way the power of attorney document for his stepfather was legitimate.

“He was on morphine at the time,” Gene Weston said.

According to a local police report, detectives interviewed several people and found Jorgensen’s husband was “only taking a minimal dose of meds.”

Police determined that Mr. Jorgensen “acted with his own free will” and ended their criminal investigation.

However, these types of cases involving powers of attorney often wind up in civil court. When people make a change to a power of attorney right before their death, it can raise concerns, especially when the person is elderly and on medication.

One thing that many people don’t know, is that they can limit the legal document to protect a surviving spouse or family members.

It’s important to carefully choose an agent and make certain that the power of attorney is properly notarized. You should select a person whom you trust, and whom you know will do the right thing for you, in case you can’t make your own decisions.

The relative who withdrew the money from Jorgensen’s bank account was not willing to speak with a reporter. However, she said that she did nothing wrong. While this may be legally correct, clearly the amount of money taken by the relative that left the widow without any money, was not the right thing to do.

Call Legacy Planning Law Group in Jacksonville, Florida to learn more about how to avoid power of attorney mistakes.

Reference: WPRI 12 (April 15, 2019) “Son questions power of attorney after mother’s bank account is drained”

A Power of Attorney and a Trust Protect You – Not Just Your Heirs
Power of Attorney and Trust are Meant for the Living, Not Just Heirs

A Power of Attorney and a Trust Protect You – Not Just Your Heirs

A good power of attorney is meant for you while you are alive. In similar fashion, a trust also helps you, not just your heirs. Experts urge people to develop estate plans to make sure you get to choose who will inherit from you and how much, and to select additional options that are available through legal documents, like trust agreements. It can be easy to procrastinate about putting the time and effort into going through this process, if you do not see a direct benefit to yourself. However, having a power of attorney and a trust can also have a dramatic effect on your life. You can protect yourself – not just your heirs – with your estate plan.

Living the Dream

You can have your elder law attorney draft documents that can make it possible for you to live your dream life, without a care in the world. Let’s say that you want to sail around the world for a few years or serve a tour of duty in the 50+ section of the Peace Corps. You cannot unplug 100 percent from the everyday world. Someone will have to pay your unavoidable bills, file your taxes and manage your money, when you are away and out of reach.

If you know someone whom you can trust without reservation, your lawyer can draft a financial power of attorney for the person you designate (your agent) to handle as many or as few business matters as you specify. You can revoke the power of attorney whenever you want, as long as you have the legal capacity to do so.

In other words, if the law would allow you to draft a valid power of attorney now, you have the legal capacity to revoke one. If you have become incompetent, for example, from an illness or injury, you cannot change the power of attorney, until or unless you regain competency.

Planning for the Worst

Your power of attorney will automatically expire, if you become incapacitated, unless you make sure that the document is a “durable” power of attorney. Being durable means that, at the time that you signed the paper, you intended for the document to continue in effect, if you could not manage matters for yourself.

If you do not have a durable power of attorney and one day you have a stroke or a catastrophic car crash, by way of example, the courts will decide who will make your financial decisions for you. Your family will have to file a request with the court (and pay the court costs to do so), wait for a hearing date, and get a ruling from a judge – a person who has never met you or your family. By the way, the judge will be required to appoint an independent attorney to represent you against your family, to protect your interests. If you prefer to have control over this decision rather than a total stranger, get a durable power of attorney.

Trusts are for the Living

Many people think of setting up a trust as a way to pass their assets to their loved ones privately and quickly, without having to go through the probate courts. While that is one of the purposes for trusts, you can also set up a living trust to stipulate how you want your assets, investments and other financial matters handled, if you become incapacitated.

You can even lay out how you want your business run, if you own a company. You can name someone to serve as your guardian and name a conservator who will manage your finances. You can also let a total stranger make these decisions.

Be sure to talk with an elder law attorney in your area, because this article is about the general law.  Your state’s rules might vary from the general law.

Find out more about how a power of attorney and trust can benefit you today.

References:

American Bar Association. Power of Attorney. (Accessed April 4, 2019) https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/power_of_attorney/

What a Durable Power of Attorney Can Do

Helping aging parents with daily tasks can become a challenge, if the parent has limited mobility. A trip to the bank, for example, will require coordinating the adult child’s responsibilities with the aging parent’s limitations. If the parent has more energy in the morning, for instance, but the adult child is working, this can become a bigger challenge than if the adult child can go to the bank on behalf of the parent, when it’s convenient for them — at a lunch break, for instance.

In this situation, as noted in The Daily Sentinel’s article “Tools to help your aging parent,” having a durable power of attorney will help. This type of power of attorney is a legal document that permits a child or other named individual to handle certain responsibilities, like banking. Granting a power of attorney to a child doesn’t mean giving up total control, which is often a concern of aging parents. It simply means that the child is now legally allowed to handle these tasks.

The durable power of attorney is different than the “general medical power of attorney.” As implied by its name, this is limited to making decisions about the parent’s health care and is usually used only when the parent is not able to make these decisions on their own.

There are more serious situations, where neither of these types of power of attorney is enough, such as when the parent lacks capacity because of dementia or a medical decision. It is necessary to protect the parent from themselves or anyone who might try to take advantage of their lack of clear mental capacity. This may require that an adult child needs to be appointed as a guardian for their parent.

Being appointed a guardian can be a very emotional event, since the parent and child are not just switching emotional roles, but legal roles. The parent no longer has the capacity to make significant decisions, because a court has found that they no longer have that ability.

You may have heard the term “conservatorship” used. It is similar to guardianship, except that the conservatorship only allows for control over the parent’s financial affairs.

Guardianship is taken very seriously, as it should be. This removes an adult’s right to make any kind of decision on their own. In some states, including Colorado, the court must first be convinced that the parent is unable to effectively receive or evaluate information or to make or communicate decisions. They must be deemed incapacitated, before guardianship can be established. Once that standard has been met, then guardianship is established. If there is a doubt about incapacity, then no guardianship will be established, and the family is faced with finding other ways to help the aging parent.

Aging parents and their children face many issues that are best addressed before incapacity becomes an issue. If the family does not have a plan for the aging parent’s care, it is recommended that the family make an appointment with an estate planning attorney to discuss the various options.

Reference: The Daily Sentinel (March 24, 2019) “Tools to help your aging parent”