Home Thoughts on "Power of Attorney."

[MichelleCarmen]

A few weeks or so back (for those who remember), I posted about a friend of mine who lives with MS and is basically dependant upon a caregiver for basic tasks. She is marrried and her husband "acts" as her caregiver, yet neglects most of her basic needs, such as taking her to the pool to help her move her muscles. He will use her SS money on himself and she cannot do anything about it because she cannot even access the account without him being there. He''s basically assumed control of everything and she has become powerless.

She also has two kids. . .

She is expecting an inheritance and there are two homes and she is expecting one to be given to her, along with a sum of money. The amount of money she will inherit is a bit of a mystery. She thinks it''s over 1 million, but I am thinking it may be less. The deal is, she has asked me multiple times to take on the duty as power of attorney in case she cannot act on her own. I''ve known her for 22 years and am the closest to family she has and would be willing to do so because I KNOW her husband is untrustworthy and I think he''s stayed with her because of the money. She has also verbalized that concern.

Basically she wants to be sure that IF something happens that I split the money three ways between her husband and each of her two kids. If she writes up a contract, will it work out that easily? The only concern I have is that she has been prescribed medications (narcotics for her MS) which impede her judgement and even though I KNOW she would want me to represent her, in reality, if her husband found a competent lawyer, possibly they could use that against the contract.

I cannot imagine being stuck in a mess like that.

Thoughts on this?

 

[pennquaker09]

If one of the lawyers here don't answer, I will attempt to call my mom and ask for you.

 

[Italiahaircolor]

I wonder if there is a way for her to draw up a no contest clause which would protect you from being sucked in....

And, if you were to be sucked into a battle...if she could set up a legal fund for you which could be saturated back into the funds if you don''t need/use it?

 

[MichelleCarmen]

Thanks. I would really like to hear an honest opinion.

Just a mini-vent: My friend has placed a tremendous amount of burden upon me over the years and I can only hold up so much of the deal. She''s fought a difficult battle over these years and I''ve tried as much as I can to be here for her, but it''s for sure taken it''s toll, you know? Everyone else has abandoned her, including her own mom (!), and I''ve remained strong and by her side, but after so long, even I feel weak knowing that no matter how many promises I make, I cannot guarantee that what I DO promise will infact result in what she hopes for.

 

[MichelleCarmen]

Date: 5/23/2009 10:31:04 PM
Author: Italiahaircolor
I wonder if there is a way for her to draw up a no contest clause which would protect you from being sucked in....

And, if you were to be sucked into a battle...if she could set up a legal fund for you which could be saturated back into the funds if you don''t need/use it?

I know for certain she would be supportive of setting up a fund in case. I just worry about the "in case." The reason basically being she is in probate because the will her father left was signed while he was sick with cancer and on narcotics. She''s going to court next month because it appears the wife of her father (her step mother) may have forged witness signatures because he was so out-of-it and possibly signed all the paperwork without reading it (or being too zonked out to understand the details). . .it seems like a repeat record this second time around IF there is another court issue.

 

[bebe]

Just guessing (and based on very limited experience) I think a POA won''t hold much power. She would need a will that specifies who gets what and that her husband
gets a set amount.

 

[zhuzhu]

She actually needs a trust, and a power of attorney for both health care management and for money/asset management.

 

[Kaleigh]

Date: 5/23/2009 11:13:40 PM
Author: zhuzhu
She actually needs a trust, and a power of attorney for both health care management and for money/asset management.

Sounds familiar to me... Plus wouldn''t her Doc be involved to sign off that what she''s signing is of sound mind and body?? Since she does have a disability?

I''d talk to your friend, and say let''s set up a meeting with your attorney and go from there...

 

[goldenstar]

She definitely needs a reputable estate planning attorney. She should definitely NOT write up anything on her own if she wants to avoid a dispute later on.

An estate planning attorney could also help her plan for any future incapacity. As in, she''s alive but no longer able to make financial or healthcare decisions on her own. It sounds like this needs to happen sooner rather than later.

 

[luckystar112]

I don't have an answer to your question, but I just wanted to comment about the conversation in general. Obviously you know the situation better than I do, but this could be a red flag. I just know that MS is a terrible disease to have to live with. I also know that some of the medication that is given can cause depression. On top of that the suicide rate is substantially high.
Forgive me for even bringing this up if it's not the case, but I've just been told that when people start talking about the "end" it's important to pay attention. At the same time, I understand that with a disease like MS talking about these things could be considered normal.

I could just be watching too much TV, but I'd watch out for the husband too.

ETA: In case you're wondering how on earth I can up with this, it's because I read this thread without responding and then went to another website that I frequent where I found out that a member there (who has MS) just shot himself. The online community on that site is very large so I didn't know the member personally....but I just took it as a sign to come back here and post this. It was a weird coincidence.

 

[beau13]

I am dealing with this right now...I am POA for my father''s personal care (healthcare), while my husband has been named as "executor" (big difference in roles).
I make decisions with regards to the treatment received in the hospital, but the executor will be responsible for decisions regarding the finances and his personal effects. (Right now, we don''t know what my father did with his will..I know he didn''t have a lawyer) so the situation is a bit different. He won''t be leaving anything really..so I''m not too concerned. With your friend, that''s a different story, so I imagine some legal documents stating who is to be the executor or her estate (and what she wishes to be done with it) will have to be drawn up.

 

[AGSHF]

MC,

Thoughts:

Your friend needs to consult a good estate planning lawyer. But, first, from whom is she expecting this large inheritance? If it''s a wealthy family member who (obviously) cares about her, then she should consult with and inform this individual about her concerns so that the inheritance can be structured the way she wants/needs it to be structured. Whoever is planning the legacy to her should know about her MS and concerns about her husband. Furthermore, that individual is in a better financial situation now to pay the legal fees. Also, frankly, until the inheritance is in her hands, it''s just an expectation and she may well end up with nothing. So, I think step one is to sort out the giving end of the inheritance. I realize this may be fraught with difficulty and is a sensitive subject, but she needs to have a clear picture of what she may be working with.

To protect herself against her husband''s financial control, she and her children need to be made beneficiaries of a trust, preferably created upon the giving of the legacy.

Due to her disability, her husband may seek legal means to gain control over her estate and financial affairs. Not a good prospect.

All of this should be done as soon as possible. Your best role would be to give her advice, counsel her through this and help her get in touch with the appropriate parties.

Making you her attorney-in-fact would likely subject you to litigation in the future, especially because there are large sums potentially involved and an unhappy husband.

She needs a good friend and a good attorney.

 

[Irishgrrrl]

MC, I'm not an attorney, but I'm a paralegal and the firm I work for does estate planning. I work in PA, so everything I tell you is based on my experience with PA law . . . your friend will DEFINITELY need to consult with a reputable estate planning attorney in your state.

Here's what I can tell you: It sounds like your friend is mainly concerned with what will happen to this large inheritance that she's going to receive, in light of the fact that her husband (a/k/a the POS who holds the POA) is very untrustworthy. If her father passes away while she's still living, your friend will receive the inheritance and then her will dictates what happens to the money/property after she passes away.

But what if your friend's father outlives her? Well, his will probably provides for that possibility. You said she has two kids . . . I would imagine that her father's will states that she is to receive the inheritance and, if she is no longer living at the time of his death, the inheritance would be split 50/50 between her two children. (I would think the will sets up a trust for them if they are not yet of age.)

The good news is, a power of attorney becomes COMPLETELY WORTHLESS once the person dies. So, the power of attorney that her husband has only works while she's alive. Once she dies, whoever is named as the executor in her will takes over. However, the flip side to that is, what if she DOES inherit this money while she's still alive? Then the husband (who seems to pull all of the financial strings through the POA) will have basically unlimited access to that money, at least until your friend dies. Who knows what he'll do with it? I say she needs to go to an estate planning attorney ASAP, revoke the POA that the husband currently holds, and sign a new POA naming someone more trustworthy. While she's there, she needs to review her current will (I'm HOPING she has one???) and possibly sign a new one if anything in her current will needs to be updated.

ETA: Oh, and when she goes to see the estate planning attorney, lets make sure the husband is otherwise occupied!

 

[Kay]

MC, your friend needs to consult a good estate planning attorney. She will need a series of documents:

(1) Revocable living trust – She should create a trust and transfer most, if not all, of her assets to it. (I usually tell clients it is okay to maintain a smaller checking account or inexpensive cars outside of the trust, as long as there are appropriate pay-on-death provisions on the accounts and a second person listed on the cars, so those assets do not have to go through probate.) When I draft a trust, I attach schedules showing the assets the settlor (creator of the trust) intends to be held by the trust, with separate schedules for community property and separate property assets. I list “any inheritances or gifts from the X family” on the separate property schedule to show that the settlor intended any inheritances she receives subsequent to drafting the trust to be governed by the trust. The settlor has free access to the assets during her lifetime and can amend or revoke the trust at any time, as long as she is incompetent. If the settlor becomes incompetent, the trusts I draft allow the settlor’s attorney-in-fact under her financial power of attorney to request funds from the trustee (frequently the same person) to care for the settlor’s needs and the needs of her immediate family. At the settlor’s death, the trustee distributes (or retains in trust) the assets according to the settlor’s wishes as specified in the trust, without the need for expensive and time-consuming probate court proceedings. The money for children can be held in trust until they reach specified ages, but the trustee would have authority to make distributions to them or for their benefit for education, medical and other support needs.

The trust should have provisions allowing the trustee to use trust funds to defend any legal challenges against the trust or other estate planning documents of the settlor. That way, if a beneficiary (like the husband) challenges the trust or otherwise makes trouble for the trustee, the trustee gets to fight the beneficiary using money that would otherwise pass to the beneficiary. Legal costs are generally charged against the trust as a whole, but I sometimes include a special provision to allow the trustee, in the trustee’s discretion, to charge costs against just the share of the beneficiary who is making trouble, so just that person is punished and the shares of the other beneficiaries aren’t reduced to cover the legal costs.

(2) “Pour-over” will – Such a will provides that any assets that weren’t put in the trust during the settlor’s lifetime will be given to the trustee of the trust at the conclusion of probate. The will also specifies who the lady wants to be the guardian of any minor children if her husband does not survive her.

(3) Durable power of attorney for financial matters – This document allows the attorney-in-fact to make financial decisions while the lady is living but not capable of doing things for herself. The POA terminates upon death. An important provision to include is one that allows the attorney to transfer any assets held by the lady outside of the trust (such as inheritance she receives) to the trust to avoid probate in case she is not capable of making the transfer herself.

(4) Advance health care directive / power of attorney – This document allows the attorney-in-fact to make medical decisions. This document can include instructions regarding “pulling the plug.”

If I am preparing documents for someone with a medical condition that can cause mental deficiencies as it progresses (such as Alzheimer’s) I request a letter from the person’s doctor. The letter should address the person’s current ability to make financial decisions and understand the consequences of those decisions. It is helpful if the person tells the doctor what she wants to do with her assets and the doctor describes the person’s expressed intentions in the letter. Such a letter can be very useful in the event of a challenge.

 

[MichelleCarmen]

Thanks everyone for all the information. After reading all this, I will for sure push for my friend to consult an estate planning attorney and to take me out of the picture. The involvement is simply too immense for me!

Her dad died one year ago and the case is in probate right now. She''s, for many years, relied on me for full emotional support, but with all that would be required for helping her, I now think I will demand she seek out a lawyer rather than me! Before I would have said yes, simply out of guilt (because that is the way I am), but the legalities involved provide an excuse for bowing out of the picture.

I appreciate all your help and providing perspective (which I desperately needed!).

 

[laine]

I'm sure this is what you meant, but I think you should help her find a lawyer rather than "demand she seek out a lawyer".