Do Your Parents Have a Durable Power of Attorney?

Estate planning is such an ominous term. Most of us try to avoid it as long as possible because it deals with our death and ultimate demise. I would rather we rename it “Transition Planning”. It is the planning we must do for our parents and ourselves to avoid legal delays and complications when the ownership and/or control of our assets shifts to another person or entity.

I have observed a number of situations where estate planning was not done properly. One that is still vivid in my mind involves one of my clients who was a retired physician. He was failing both physically and mentally when his wife decided to place him in a nursing home. She began making decisions regarding his finances, continuing to use their joint check book to pay the bills and make purchases, etc. Then without warning, she was contacted by the attorney of the Doctor’s first wife’s family stating that she had no authority to act in his behalf even though she was his second and current wife.

The family alleged that she was acting irresponsibly and making financial decisions that would result in the depletion of the Doctor’s assets so that nothing would be left for his  children. Unfortunately,she had no document that stated she had the right to act in his behalf. She was forced to go to Probate Court to prove that he was incompetent and become his conservator. (A conservator has the legal right to act on behalf of a mentally incompetent individual.)

She had to testify before a judge in probate court that her husband was incompetent—an event that proved very embarrassing for the whole family. The judge ruled that the Doctor could not handle his own affairs and his wife was named as his conservator. But the legal process took more than a month.

The whole mess could have been avoided if the Doctor had signed a very short three page document called a “Durable Power of Attorney” while he was still healthy. This document gives an individual the right to make financial decisions for you when you are no longer able to make decisions for yourself. A regular power of attorney only allows you to act in the person’s behalf if they are mentally competent. The “Durable” power works regardless of the individual’s mental state.