New York Estate Planning & Elder Law Blog
What happens if you have an accident or an illness whereby you are unable to handle your legal and financial affairs? Many people incorrectly believe their spouse is legally able to handle their affairs. Similarly, a parent has no legal authority to handle the affairs of a child, once the child attains the age of majority – eighteen years.
Without a power of attorney, you would have to apply to a court to be named a legal guardian. These proceedings are expensive, time-consuming and fraught with peril. The judge has no obligation to name the spouse or parent as legal guardian and may appoint a stranger. For example, the judge may feel that the spouse or parent has a conflict in that they are the beneficiary of the incapacitated person’s assets, or the judge may decide that someone else has more knowledge and experience in handling such matters.
Who should you choose as your “agent”? In our experience, the vast majority of powers of attorney name the spouse first and one or more of the children second. While on its face this seems reasonable, experience has shown it may not be a good idea. We often need to use the power of attorney when the client is quite elderly and infirm. Often, so is the spouse at that time. Son or daughter wants to step in and help out with bill paying, etc. only to find they are unable to use the power of attorney for dad unless they can prove that mom can’t.
How do you prove she can’t? First you have to get the doctor to write a letter that mom is unable to handle her legal and financial affairs. Will the doctor write the letter? Will the letter be clear and unequivocal? Will each of the third parties you have to deal with accept the letter? These are not easy hurdles to overcome.
We believe there is a better way. We simply say either mom, or son, or daughter may act as agent. The problem is eliminated. You are protected from son or daughter misusing the power of attorney by the fact that they do not have the document – you keep it in your possession and make it available if and when they need to use it. Bottom line: all adults should have a power of attorney.