“Exactly how much power am I giving you?”
This was the question my father asked me when I wanted him to sign a durable power of attorney. (Yes, just as the cobbler’s children have no shoes, the lawyer’s father had no power of attorney.) He was in the middle of selling his house and buying a new one, and I explained that if he was out hiking and fell and hit his head, I did not want to have to go to court to get a conservatorship over him to be able to complete the sale and purchase of the homes.
So, I explained that he was giving me a lot of power. Everything from signing checks to pay his bills to selling his house. But he was also giving me a lot of responsibility. The responsibility to talk to him about what he wanted, the responsibility to figure out what was in his best interest if I had to be the one making decisions, and the responsibility to be a good steward of his property. In other words, he wasn’t giving me the power to do whatever I wanted with his property. And as long as he was able to manage things for himself, I wouldn’t be doing anything. But if he wanted me to talk to the real estate attorney or broker, I could.
This is a concern of some of my clients. They worry that if they sign power of attorney over to their children they will lose control. But what they are really doing is taking control. Control over who will help them. Control over who will have access to their information. And control over who will not.
My father signed the power of attorney. And now when he hikes I still worry, but not about whether I’ll need to be heading to Court instead of the hospital if he has an accident.
Estate Planning, Probate and Medicaid involve complex areas of law. Individual circumstances must be considered before any advice can be given. The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as may be appropriate.
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