When most people come to our firm to talk about a will or trust they don’t realize that an equally important document is the Durable Power of Attorney. The client is focused on what happens when they die whereas they should be more focused, in some ways, on what happens when they become incapacitated and can’t manage their money. A Durable Power of Attorney is a document that we create for our clients which allows them to choose who will manage their money while they are still alive, but incapacitated. With medical conditions like Alzheimers and Dementia it has become very common in today’s society for a person to have physical health which allows them to live long lives while their minds cannot keep up.
We have received numerous phone calls from loved ones who, after talking with the elder care facility, are seeking to put a Durable Power of Attorney in place. What they don’t realize is that once the individual has become incapacitated, that individual cannot create a Durable Power of Attorney. In most cases a conservatorship is required to proceed. Conservatorships can easily cost thousands of dollars and have very stringent requirements. Moreover, a court is now deciding who will manage your finances as opposed to your own choice.
A common misconception is that spouses can just sign for each other. In reality, if both spouses were required to sign a legal document such as a deed while they both had capacity, only a Power of Attorney or a Conservator can sign for the incapacitated person. Based on this misconception I have had people call my office, after their spouse was incapacitated, to find out how to sell an asset to pay for such things as medical care. I have had to tell them that since a Durable Power of Attorney was not put in place before hand our only option is to expend a lot of money to get a conservatorship in order to sell the asset.
Therefore it is critical, even for young people who do not have a large estate, to have a Durable Power of Attorney in place so that their finances can be managed while they cannot do it for themselves. We are constantly updating our Durable Power of Attorney to keep up with today’s assets such as control over e-mail, facebook and other electronic accounts. By hiring our firm you can be confident that your loved ones will be able to take care of your finances when you cannot.