Often it is assumed and anticipated that a husband or wife can make decisions for their spouse. A physician may allow the spouse to make decisions for an incapacitated spouse, sometimes there is a dispute between the children and spouse, or possibly between children of a prior marriage and the spouse. If this happens, the matter will have to be decided by a guardianship or conservatorship hearing that will determine who has the authority to make the decision as well as what the end result of the decision will be.
Since every citizen of the United States has the right to make their own personal, health, and financial decisions, they should also select who they may wish to serve for them in the unfortunate event of their incapacity. All too frequently it happens that a person doesn’t have the necessary documents, and a court proceeding is necessary. This process can be emotionally draining, expensive, and time consuming. It makes a private matter very public regarding details of the medical situation, current assets, and the court’s requirement that a bond to be filed to guarantee that the fiduciary will not dissipate the assets improperly.
In most states, it is also necessary that an attorney represent the family in pursuing the involuntary guardianship proceeding. Although a spouse may have endorsed checks all through their spouse’s lifetime, upon incapacity, they will not have the authority to make any major decisions, such as withdrawing funds from an IRA, dealing with life insurance companies, attending to stock transfers or sales, or even signing income tax returns without the necessary authority.
Preparing a Durable Power of Attorney will allow a spouse or whoever is designated to make the decisions when incapacity sets in.
Therefore, not only is the set of documents for incapacity (Power of Attorney and Health Proxy) necessary for spouses, they should also be considered when children reach the age of eighteen, as they are in a position to make legal decisions for themselves. Unfortunately, when a legal-age child becomes incapacitated, a court proceeding is necessary to attend to their affairs if proper documentation is not in place.
by: Hyman G. Darling, Esq.
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