Legal Documents

Legal Documents
Following the discovery of my mother’s disastrous financial situation, the realization hit me that she could no longer handle her financial affairs. Although suffering from some degree of dementia, she was still highly functional. I did not worry so much about her living independently, but I knew she could not write the checks and pay the bills. Once I had an assessment of the entire financial picture, I called a lawyer friend of mine for some advice.

The number one task was a Durable Power of Attorney. A Durable Power of Attorney is a document that gives an attorney-in-fact the power to make financial decisions and execute legal documents on behalf of another person. An attorney-in-fact has the legal power to do anything that the designee can do. My sister and I had been able to convince our mother to update her estate planning documents about five years prior. She had a Last Will and Testament, a Durable Power of Attorney, and a Health Care Power of Attorney. The documents were all still valid, but we had one huge problem. Because my sister is the oldest, mother thought it would be best to make my sister her attorney-in-fact, with me as the backup should something happen to my sister. We all thought that was a fine idea until my sister moved to an island in Alaska. Having her in charge of mother’s affairs was no longer the most expedient way to do business. Mother was in crisis in Florida. Financial decisions had to be made quickly and processes put into motion immediately. If you know anything about Alaska, you know “quickly” and “immediately” are not common words in the language, especially when you live on an island. We would be required to do everything via the United States Postal Service. The processing time for paperwork and/or checks could be up to two weeks. The only sensible option would be to make me the attorney-in-fact for mother, with my sister as a backup for me. I knew mother was capable of making this decision and capable of signing her name, but would a court of law see it the same way? My lawyer friend gave me three criteria for determining whether mother was competent enough to sign this document.

1. Did mother know what her assets were?

2. Did she know who her close relatives were? Could she name her children and grandchildren?

3. Did she understand why she was signing this paper and did she understand what the Durable Power of Attorney would do? Did she understand that she was giving me the power to handle her affairs without further approval?

The lawyer in Ohio drew up the document and faxed it to me in Florida. The office staff at the mobile home park where mother lived was so helpful. Fortunately, one of the staff was a notary public. She asked mother all of the above questions and, satisfied with the answers, notarized mother’s signature. I had mother execute three original documents in the event that one of them was misplaced or I had to give an original to a bank or other institution. With the Durable Power of Attorney in hand, I was now equipped to handle all of mother’s financial affairs. At the time, I had no idea how invaluable this document was to become. Thankfully, I had received good advice.

If you do not have estate plan documents yet, I strongly encourage you to do so. I have often heard people say, “I really should do that,” but then they never get around to it. You can save yourself a great deal of grief by planning. Parents, please do your estate planning ahead of time and do not wait until a crisis hits. As related above, if my mother had not passed the competency requirements, we would not have been able to change her Durable Power of Attorney. Children, estate planning is not only for “old people.” Without sounding macabre, you don’t know what tomorrow will bring.

At a minimum, everyone should have a Last Will and Testament, a Durable Power of Attorney (for financial decisions), and a Health Care Power of Attorney (in case you cannot make health care decisions for yourself). If you feel strongly that you do not want to exist in a vegetative state and you want life support terminated in that event, then you need a Living Will as well. If your assets are many, you may want to consider a Trust. An estate planning attorney can best evaluate your situation and advise you on the best course for you and your family. Various attorneys come at a high price, but not all of them. You can find an attorney who will do your estate plan at a reasonable fee. The money you spend on planning will be far less than the money you might spend on costly mistakes in the future. You will also gain peace of mind knowing you and not someone else have made these important decisions.

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