Dear Liz: Good news! I wrote to you recently about being unable to find my elderly father’s signed living trust. However, just by luck (or maybe it was prayers to St. Anthony), the original copy of the trust has turned up! So that’s one problem solved. Now I hope you’ll tell people how important it is to sure your parents have filled out durable powers of attorney for finances and for health care. We had a health care power of attorney for him, but my dad never filled out the other kind, which has made it extremely difficult to handle his finances now that he’s had a stroke and is in a nursing home. Our only option may be to get a court to appoint a conservator of his estate but it sounds like that would be complicated, costly, and probably take a long time.
Answer: Every adult who cares about his or her family should have durable powers of attorney for health care and for finances. As you’ve discovered, the lack of these documents can cause huge problems, forcing families to go to court to get authority to make decisions.
Many people assume incorrectly that their spouses can just take over. In reality, without a durable power of attorney a spouse may not have the legal authority to transactions involving real estate, investments and other assets, even if they’re jointly held. If the spouse is also incapacitated or dies first, getting anything done—down to paying the light bill—can become impossible.
Your father’s living trust may have language that allows the successor trustee (the person who would manage his assets after his death) to make decisions regarding the assets in case of your father’s incapacity. But he still needed a durable power of attorney for finances so that someone else had legal authority to make decisions about assets held outside the trust and to pay bills.