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The Importance of Inspecting Your Power of Attorney

Not long ago I took my 2000 Ford Explorer for inspection and was told it needed new tires. I was shocked because it seemed that only a few years ago I put new tires on it, and this car is driven barely 3,000 miles a year.  But what I recalled as only being a few years was actually six years, and the tires were showing signs of dry rot.

I would not have known that my tires were unsafe if my Explorer had not been inspected. My neighborhood car specialist,  Zimmerman’s Auto,  has earned my trust over the years and has pretty much an open-service order to do what is needed when I take our cars for service.  Since I am not a car expert, it is reassuring to know that my family’s  safety is protected by trustworthy experts.

When I was told I would need to invest a little more than $400 in a set of new tires, I objected: “But the last time I bought the best package of tires down at the mall and got my guarantee good anywhere in the nation, I was promised that I’d get at least 50,000 miles!   I only got 20,000! Why didn’t they last?”

My neighborhood car expert explained that my tires deteriorated more rapidly from regularly parking my Explorer outside on a concrete driveway, exposed to the heat and sun. Knowing that circumstance, they suggested a tire that would keep my family safe, even in occasional driving off-road or in inclement weather, without the unnecessary extras previously sold to me by the nationally-known tire dealer that started as a catalog store. I drove away feeling safe and well served by advice that was appropriate for my needs.

So what does having my Explorer’s tires replaced by a neighborhood car business have to do with Elder Law? When is the last time you had your estate planning documents inspected?  Getting your estate planning documents inspected is not required by the Governor; and it is not paid for by health insurance or Medicare.  So why bother?

If I had not replaced my tires, possibly no blowout would ever happen. But experience warns that a combination of heat and speed can trigger the blowout of a rotted tire. For you macho guys who feel confident that you could handle that, consider that your wife or grandchildren could be passengers while your reflexes are being tested by the challenge of a blowout at a high speed in heavy traffic.

Every now and then, we see someone’s family in our Elder Law office that is a bit like the family of the guy who didn’t replace his dry-rotted tires. Sometimes a condition of dementia occurs suddenly after a stroke, resulting in the spouse or parent no longer having capacity to express his or her wishes.  Other times, Alzheimer’s disease starts gradually, but results in the irreversible incapacitation of its victim, with as much stealth and certainty as a rapidly rising creek that engulfs a car and its driver who ignores flood warnings.

The dementia victim who has never bothered to create a durable Power of Attorney (POA) document is a candidate for an expensive guardianship process. Those who work with infirmed elderly refer to this scenario as a “train wreck;” but for this analogy, you can imagine the guardianship process to be like a blowout.  Instead of calling 911 for a tow truck, the family must petition the Orphan’s Court to declare their loved one to be an incapacitated person, which can be a costly and time-consuming process.

A technically inadequate POA document can be contested by a dissenting family member, or resisted by a financial institution. The sale of a home or transfer of an investment asset can be delayed.  The inconvenience and lost economic opportunity of a delay, and the cost of legal advocacy for an eventual solution, can be more expensive than having a solid POA document in the first place.

A well-intentioned but inadequately counseled parent might hope that the best way to fulfill their wish to have a harmonious family is to avoid giving one child exclusive status as their POA agent.   They blissfully name their preferred POA agents as George and John and Paul and Ringo.   Others are overly flexible by appointing Sonny or Cher.  Some are indefinite such as naming Peter and/or Paul and/or Mary. The lack of a specific POA appointment can be like a tire’s dry rot and become the root cause of an ugly and expensive eruption within your family during the heat of discussions about how to best use assets for your care.   Family disagreements among multiple POA agents can delay your care, be expensive and painful to litigate, and become an obstacle to asset protection.

Just as some tires are suitable for normal driving but not inclement weather, some POA documents work for middle-aged persons, but do not allow the flexibility to protect assets when one of the spouses is in a nursing home and is longer legally competent. Most people prefer that their families and not the Commonwealth or nursing home would receive their last $50,000.  But the right legal document must be in place in advance to permit asset protection, and you won’t find that document at your favorite office supply store or be able to download it from your favorite on-line catalog store or “virtual legal advisor.”

You need a legal checkup if you do not have a POA document, had it inspected since 2007, are experiencing early stages of dementia, or have reached age 70. Your future care and your family’s well-being require inspection of your affairs by a local attorney whose knowledge and experience can help you to avoid a future blowout.  You deserve the peace of mind of knowing that, if the inclement conditions of dementia sneak up on you like a surprise storm, your affairs will be navigated safely without family arguments about whose directions are better.

By Attorney Dave Nesbit