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What Can You Do When A Spouse or Partner Becomes Incapacitated?

Are you concerned about protecting your future? Sitting down with one of our estate planning attorneys can be one of the most important things you and your spouse or your life partner can do when it comes protecting your assets and planning for the future.

During our complimentary initial consultations, we will discuss what happens if one spouse or partner becomes incapacitated while the other remains healthy. Complications can come up in unexpected situations, such as attempting to sell your home when a notary public refuses to notarize the signature of one spouse who appears to be incapacitated and therefore, unable to legally sign these documents. If the house is jointly owned, as nearly all married couples’ homes are, then both owners will need to sign on the sale. If one spouse has died, then the other will become the sole owner and can do as they wish, but what if the other spouse is alive, but not competent? Without the right power of attorney, the competent spouse or partner will need to go to Probate Court to be appointed as a conservator.

It is very common for married couples to say things like, “it’s fine, we’re joint on everything.” Except that’s usually not true. It may be true for the house, for the checking and savings, maybe even for some investment accounts. But what about retirement accounts? If you have an IRA, 401k, 403b or other qualified account, your spouse is not the co-owner of that account. When people say their spouse is “on” their IRA, what they mean is the spouse is the primary beneficiary so the money will go to the spouse when they die. But what if they’re alive, but not competent? What if the competent spouse needs to access IRA assets? What if they need that money to pay for care or to help them pay the bills? With the right power of attorney, they can access the retirement funds, but without one, they’re going to have to petition the Probate Court.

All that hassle, cost and time could be avoided with a well drafted Power of Attorney.

One final consideration: not all Powers of Attorney are created equal. A Power of Attorney does not and cannot grant someone total blanket powers to handle all legal and financial affairs. A Power of Attorney is actually a list of specific powers, i.e. banking powers, real estate powers, litigation, care planning, etc. Many Powers of Attorney are drafted very narrowly and may limit the ability of the Agent to take necessary action in the event of a crisis. Just because you have a Power of Attorney does not necessarily mean your Agent is free to act in your best interest. Whether you have an existing Power of Attorney or need to get one in place, Scarola Law is here to help.

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