Do you know what legal documents you should probably have in place right now?
A Power of Attorney is one of the most important legal documents a person can have. Without a comprehensive power of attorney, many people are unable to handle their loved ones’ financial matters nor make health care decisions without seeking court intervention.
We often have clients come into our office assuming that just because their assets are titled jointly with their spouse, parent or partner, that they are able to liquidate accounts to pay bills, hire attorneys, sell their jointly titled real estate, etc. Unfortunately, that isn’t the case. In fact, we recently had a client come into our office who had a jointly titled investment account with his wife whom had just entered a nursing home. Without going into great detail, he did not have a power of attorney for his wife and was unable to transfer the assets into his name to do some Medicaid planning. Instead, he has to petition the court to become his wife’s Conservator and spent tens of thousands of dollars on her nursing home care when he could have, had she had a proper power of attorney, transferred the account into his name, alone, purchased an annuity for himself and qualified her for Medicaid immediately.
What is a Power of Attorney?
A power is a legal document where one person (the principle) authorizes another (the agent) to act on their behalf. There are financial powers of attorney which allow your agent to make decisions regarding your property and healthcare powers of attorney which allow your agent to make decisions regarding your health care needs. Your power of attorney can be broad in scope, giving your agent the ability to make any and all financial and personal decisions for you (a General Power of Attorney) or you can limit your agents authority by specifying the types of decisions you would like them to make on your behalf (a Limited Power of Attorney).
You also have a choice whether you would like your agent to have the ability to make decisions both now and if you become incompetent (a Durable Power of Attorney) or your agent can be limited to make decisions only when you become incompetent (a Springing Power of Attorney).
What is a Guardianship?
Guardianship is a legal relationship whereby the Probate Court gives a person (the guardian) the power to make personal decisions for another (the ward). A family member or friend initiates the proceedings by filing a petition in the Circuit Court in the county where the individual resides. A medical examination by a licensed physician is necessary to establish the condition of the individual. A Court of law then determines the individual is unable to meet the essential requirements for his or her health and safety and appoints a guardian to make personal decisions for the individual. Unless limited by the court, the guardian has the same rights, powers and duties over his ward as parents have over their minor children. The guardian is required to report to the court on an annual basis.
What is a Conservatorship?
A Conservatorship is a legal relationship whereby the Probate Court gives a person (the conservator) the power to make financial decisions for another (the protectee). The Court proceedings are very similar to those of a Guardianship except the Court of law determines an individual lacks the capacity to manage his or her financial affairs and appoints a conservator to make financial decisions for the individual. Often the court appoints the same person to act as both the guardian and conservator for the individual. Like the guardian, the conservator is required to report to the court on an annual basis.
A power of attorney is a relatively low cost and private way to decide which family member or trusted friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself.
If you do not have a power of attorney or if your power of attorney is not drafted properly, and something happens that results in your inability to make decisions, your family/friends may later face court proceedings and court supervised Guardianship and/or Conservatorship. A court proceeding is not only costly, but the person appointed as your Guardian/Conservator may not be the person whom you would have chosen yourself. And, as stated above, not having a properly drafted power of attorney could significantly limit financial and/or Medicaid planning that could be done on behalf of the principle.
At the Estate Planning & Asset Protection Law Center of Dennis Sullivan & Associates, we help people and their families concerned with losing their homes and life savings to increasing medical and nursing home costs, taxes and the costs and time delays of probate. We also protect clients from losing control of their own health and financial decisions.
Gain instant free online access to “Seniors’ Guide to Health Care Reform & Avoiding Nursing Home Poverty”, which contains information on how Massachusetts Seniors will be impacted by the Affordable Care Act, by clicking here.
We encourage you to attend one of our free educational workshops to learn more about our process and what you can do to enhance the security of your spouse, home, life savings and legacy. To register for a seat at an upcoming workshop call (800) 964-4295 (24/7) or register online at www.SeniorWorkshop.com.