Question: My mother passed away about six months ago. My father recently executed estate planning documents with an Elder Law Attorney. He told me that he named me as his agent under a Power of Attorney. Since I am married, is it necessary for me to have a Power of Attorney or can my wife handle everything if needed?
Answer: You need a Power of Attorney. A spouse cannot access financial information or transfer assets without a Durable Power of Attorney. A validly executed Power of Attorney will allow you, the Principal, to designate an Agent to act on your behalf and virtually step into your shoes with respect to all of your business and financial matters. The purpose of a Durable Power of Attorney is to have one comprehensive document that will allow an agent to transact business on all accounts regardless of the financial institution. Where an individual becomes incapacitated without having these documents in place, the family (even a spouse) may find themselves petitioning the Guardianship Court in order to have the authority to do the very same thing that a valid and comprehensive Power of Attorney can provide.
It is important to note that a Power of Attorney is only as good as the powers listed within the document. A common misconception (along with not needing a Power of Attorney because you are married) is that by signing any Power of Attorney, it will allow your agent the ability to do “everything.” When your agent uses the Power of Attorney, the financial institution will review the document to make sure the exact power is listed. For example, the statutory gift rider on the Power of Attorney must be signed in order to transfer unlimited amount of assets out of the principal’s name. This is commonly needed in the context of Medicaid planning. If the statutory gift rider is not included within the document or signed by the principal, then unlimited amount assets cannot be transferred out of the principal’s name. In other words, if you needed to rely on Medicaid and you either did not execute a Power of Attorney or did not sign the statutory gift rider, your spouse may not be able to qualify you for Medicaid.
Regardless of your situation, having a comprehensive Durable Power of Attorney executed is invaluable to your estate plan. In order to make sure you or your family members are covered in the event of incapacity, you should consult an elder law specialist in your area.
- Brittni Sullivan, Esq and Nancy Burner, Esq.