How Do You Avoid Doing the Capacity Evaluation Piece?
I heard this question from a licensed clinical social worker just the other day. Essentially she was asking, what’s the legal mechanism to avoid having to convince the court, professionals and interested parties that Mom is cognitively impaired to such an extent that she needs a guardian, firstly and foremost-ly to make appropriate living arrangements, but then also to handle all the finances and things? The answer is simple: you can avoid that rigmarole altogether with a properly crafted Durable General Power of Attorney (DGPOA).
The context of my colleague’s question was an adult guardianship proceeding on which we collaborated. One of the questions we had to confront, like we do in every adult guardianship, was whether the person was cognitively incapacitated to the point where there was presently a need to appoint a guardian to manage the persons’ affairs. Now, just exactly how much capacity a person suffering from Dementia has at any given time is a determination that is a little bit art and a lot and bit of experience. Suffice it to say, our case was a tricky case and it left everybody involved a little bit exasperated when someone with limited Dementia experience upset the apple cart because she misunderstood the person’s capacity.
Through a Durable General Power of Attorney
The good news is, for those of us inclined to plan properly for life’s twists and turns, the whole situation can be easily avoided with the aforementioned Durable General Power of Attorney.
A DGPOA is a POA that has two characteristics. One, it is Durable. It is effective upon execution (meaning after you signed the document) and lasts until the agency relationship is revoked by the principal or the principal dies. The converse to Durable is Springing, or when the power springs into existence upon the occurrence of a specific event. Two, it is General. It grants the agent broad powers that are enumerated in the document, and it gives the agent authority to use the principal’s means (cough: money) to exercise those powers. The converse to General is Limited. A Limited POA authorizes the agent in a limited capacity, such as to sell real estate.
Who do I appoint as agent for the DGPOA?
So who would you name to serve in such a capacity? Well, I would offer to you that it would be best to put the question to an attorney whose advice you trust to review and analyze your particular circumstances, but I can offer a few general guidelines.
Generally speaking, spouses and family caregivers are appropriate candidates for DGPOAs. While you’re young, (say, under the age of 50) appoint your spouse, if you have one. (Sidenote: if you don’t have the legal tie of marriage binding you to your significant other, but still wish to grant them these powers should they be necessary, execute a Springing POA instead.)
If you’re over the age of 50, you can still appoint your spouse first, but then the conversation begins to turn on identifying future potential caregivers, like your children or a close friend who’s spry by virtue of being 20 years younger than you. Heck, even a step-sister or step-brother, just so long as they are from an earlier generation and are in general good health and you trust them.
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Misha is an estate planning attorney for his firm, Speedwell Law, PLLC. If you would like assistance in setting up your own estate plan, Misha can be reached at (703) 553-2577 or [email protected].
This post, including any of its contents or links, is not intended to provide you with legal advice. It provides personal perspectives on legal news and developments. Reading this post, leaving a comment, or communicating with its author by email or over the Internet does not create any attorney-client relationship.