It happens all too often.
A married couple owns a piece of real estate such as a vacation home. One spouse falls ill with a crippling disease like Alzheimer’s, and unfortunately, though the couple may have an advance directive for healthcare decisions, they don’t have a “durable power of attorney” to make financial decisions if the other is incapacitated.
Needing money to pay for medical care, the healthy spouse decides to sell the vacation home. But both spouses’ names are on the deed, and the spouse can’t sell without getting a signature from his or her incapacitated loved one. Without durable power of attorney signed previously by the incapacitated spouse giving the other spouse authority to handle the couple’s joint finances, there’s no way to make the transaction except through complex legal channels.
“The only way they can sell the property is to go to court for a guardianship proceeding, which is costly and takes a long time,” said Michael T. Thompson, J.D., LL.M. (Taxation) of Cestone & Thompson, P.C., a New Jersey law firm. “And you’re having someone declared incapacitated, so there’s an element of taking away someone’s dignity.”
The Financial Importance of Power of Attorney
A lot of the complications and potential loss of privacy could be avoided, Thompson said, if more people took time earlier in their lives to make durable powers of attorney giving both partners authority to undertake financial transactions on the other’s behalf. In case of mental incapacitation, "durable" powers of attorney are needed for medical care and finances. A durable power of attorney means that the document stays in effect if someone becomes incapacitated and unable to handle matters on his or her own. A durable power of attorney also comes in handy when an adult child must handle financial matters for an incapacitated parent.
Many people are aware of the need for health care proxies, a legal document that empowers an agent to make medical decisions for them. For this reason, the health care proxy is sometimes referred to as medical power of attorney or power of attorney for health care.
Beyond the Living Will
But a durable power of attorney goes beyond the living will and health care proxy to cover financial processes. This can be helpful not only if a couple owns property together, but also in cases where one partner requires access to shared finances and retirement savings, or needs to make Social Security or Medicare decisions for his or her spouse. It’s also something adult children should discuss with aging parents.
Unfortunately, many people prepare advance directives like living wills, but forgo the process of preparing a power of attorney that identifies a financial agent.
“If you get estate planning, you’ll get the will done, but I try to point out the whole estate plan is more than just a will,” Thompson said. “Without a health care proxy and advance directive and power of attorney, the estate plan isn’t complete. It’s basic planning but it covers so many situations. Without power of attorney, the healthy spouse can’t unilaterally sell a property even if the couple has owned it jointly for 50 years.”
And without power of attorney, he added, one spouse can’t withdraw the Required Minimum Distribution (RMD) from the incapacitated spouse’s Individual Retirement Accounts (IRAs), or even a savings account in the incapacitated spouse’s name.
The solution? Start early by working with financial advisers to spell out advance directives and durable power of attorney before a crisis. The process is far less complicated than going to court after a crisis occurs. Or, for adult children with elderly parents, sit down and have the conversation with them, even if it’s uncomfortable. Ask if they’ve planned for a time when one or both of them becomes incapacitated, and make sure they understand the concept of advance directives and the importance of preparing a durable power of attorney.
“It’s such an innocuous document, but it’s often the single most important piece of the estate plan, even more than the will,” Thompson said.
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