Any of us, at any time, could have an accident or illness that leaves us unable to take care of ourselves or manage our own finances. This can happen at any age, but often happens as we get older and life becomes more difficult.
Many married people assume that their spouse would be able to handle things for them. Not true. Have you ever tried calling on a credit card or cell phone bill that is in your spouse’s name? Good luck with that! Now just imagine that your medical bills are piling up and you are too sick to talk the insurance companies. Or what if your spouse has Alzheimer’s and you need to borrow against your jointly owned home to pay for his care? His signature will be required to take a home equity loan. What do you do?
If your spouse has not appointed you as his agent under a Durable Power of Attorney for Property, your only option would be to petition the probate court to be appointed as his legal guardian. You must file a petition, including a physician’s certification of his condition. Your husband will be served with notice of the guardianship petition by a sheriff or other process server. You, and possibly your husband, will need to appear in court and answer questions from the judge. The court must then determine that he is legally incapacitated and that you should be his guardian.
Once appointed, you will have to get the judge’s approval before you do anything with his money or assets. You will be limited to what the judge feels is appropriate as to investing funds and spending money for your husband’s needs, and you are required to file annual accountings with the court to be approved by the judge. This will go on for the remainder of the disabled person’s life. This is the same scenario if it is your parent, grandparent, sibling, or even your adult child who is the one with the disability rendering him or her unable to take care of his or her own finances.
Not only is this process extremely invasive into your personal lives, but it is very expensive. The initial petition, and every subsequent trip to court, will require you to prepare paperwork and will cost money, especially if you have an attorney assisting you and appearing in court with or for you. Nobody really wants a judge deciding what is best for them or their family.
Fortunately, there is a way to avoid all of this. A Durable Power of Attorney for Property allows you to name whoever you wish as your agent to be the one to help you with your finances in the event you ever need such help. You can (and should) name one or more back-up agents in case your first choice person is unable or unwilling to act for you later. There are certain legal requirements for the power of attorney to be valid. While the basic statutory power of attorney covers many financial matters, you should consider adding additional powers that your agent would otherwise not have unless specifically listed. The additional powers could prove to be extremely beneficial to you, depending on your particular financial situation and circumstances at any given time.
Don’t wait–take the steps now to assure that you and your loved ones will be covered in the event of a disability. Waltz, Palmer & Dawson, LLC. would be happy to discuss these issues with you and offer recommendations as to what would be best for you and your family. Call our office at (847) 253-8800 to schedule a no-charge initial consultation with one of our experienced estate planning attorneys.
Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Business Immigration, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.
This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.