power of attorney

: Image by TheAlieness GiselaGiardino²³ via Flickr

by Rose Broyles

I wrote an article awhile back about Eldercare Law: When Senior Still Has Mental Capacity and the importance of getting things in order for your parents. This is one of the times where we should have followed our own advice. We figured that since Dad still understands what’s going on around him, we could wait a little longer to secure a Power of Attorney for him. Although he is still mentally alert, he has a hard time understanding what people say to him over the phone. Recently, Dad had a levy placed on ALL of the funds at the bank. The California Franchise Tax Board decided that Dad owes a good amount in back taxes and held his Social Security check.

No Power of Attorney, No Information

Big problem for us, as that money needed to go towards their rent. When we called the California Franchise Tax Board (as indicated by the bank) they would not release any information to me as far as how much he owes, and what kind of payment arrangement we could make (because this would cause a hardship). Yes, I could have just gone over to Dad’s house and have him give them permission for me to talk to them. What a pain that would be! So, after waiting a long time to do this, we decided to go ahead and file for a Power of Attorney at Legal Zoom.

So, we should be getting the papers shortly. We’ll then need to go get them notarized so that we can start handling Dad’s affairs without burdening him. Of course, he already leaves everything to us to take care of. You should make sure that your parents are ok with you handling anything financial, legal or medical on their behalf before you do anything.

No Holds Barred When You Owe Taxes

The problem with tax authorities is that they do not discriminate when it comes to collecting supposed “owed” taxes. They don’t care if you are senior, a single mom or millionaire. It didn’t matter if this was a joint bank account or a single bank account. Any account with Dad’s social security number attached to it would have been affected regardless. So, even if we had our own money going into that account we ourselves would be affected and couldn’t do anything about it! So, lesson learned. I’ll keep you posted! How about you? Have you had any horror stories with taxes and your parents?

Taxes – What Documents To Keep and How Long? (1-2-3getorganized.blogspot.com)

Elder Law: When Senior still has mental capacity

One important, yet complex and quite stressful aspect of caregiving is taking care of all of the legal issues regarding your loved one.My sister and I still have much to do in this department. Because we are dealing with both parents, this is a little tricky. My father is still mentally capable, he still maintains his status as the responsible party in his and my mother’s affairs. However, in the unfortunate event that my father passes before we are unable to establish a Power of Attorney, we could be in for a big headache.

Here are a few strategies to consider:

As mentioned above, my sister and I are still in the process of getting things in order. We have completed some tasks and still have others that we need to complete before time runs out.

Make sure to have the care receiver sign legal documents while he or she has the mental capacity to do so. We had our mother sign some of the paperwork while she was still able. However, my father has signed on her behalf for much more recent documents. It is important to establish a Power of Attorney as soon as possible. * See Power of Attorney later in this article.

What is a will? A will is a legal document that states where or to whom a person’s assets will be left to after his or her death. The person signing the will must have the mental capacity to do so. Wills can be hand-written by an individual who must sign and date it. There is also legal software that you can purchase to easily write up a will. Finally, you can go the traditional route and have an attorney prepare a will in accordance with your state law. Assets in a will include any possessions in the person’s name only. Beneficiaries will receive assets under the will after death.

The assets included in the will are given out after a court-supervised process called a probate. Probate transfers a person’s assets to whomever is specified in the will. Probate court charges fees for this service which are taken directly from the assets before they are given to the recipient.

A person can change their will whenever he/she feels the need to do so. The will does not need to be disclosed to anyone and it should be kept in a safe place.

If the will isn’t completed before a person still has the mental capacity to do so, the community assets (assets acquired during a marriage), will be given to the spouse. If there is no spouse, community assets will be distributed to the children. Separate assets will be distributed to the spouse and other relatives. If for some reason, there is no family, the assets will be given to the state.

Many times, you local senior advocacy center can provide these services free of charge

A revocable living trust is a legal document that allows a person to specify what will happen to their assets while they are still living, incapacitated or after they die. The trust is labeled “living” because it is made while the person is still alive. The revocable living trust can be changed or revoked at any time as long as the person still has the capacity.

The trust is set up in a way that a person’s assets listed in the trust are “owned” by the trust. The grantor, (individual with assets in the trust) can act as trustee and manage his or her own trust or have an outside person or organization act as a trustee.

A successor trustee should be chosen to manage the trust if the original trustee is incapacitated. More than one successor trustee should be chosen in case the first loses capacity. Since the assets of the grantor are in trust, it avoids probate court.

Advanced Health Care Directive
An advanced health care directive allows persons to make their care decisions before they become incapable of making these decisions on their own.

In the directive, procedures and treatments are listed that a person can include or refuse in any situation. Another term used for the Advanced Health Directive, is the Durable Power of Attorney.

The directive may also choose an “agent”. The agent can make decisions about an individual’s health care treatments when the individual loses capacity to do so.

Power of Attorney:

There are 3 types of Power of Attorney which are listed below.

1. General Power of Attorney: A legal document that gives an agent the financial rights of the person signing the document. If this document is signed when the person doesn’t have the mental capacity to do so, it is void. If they become incapacitated, it becomes void.
2. Durable Power of Attorney: It works the same way as the general, but it doesn’t lose power after someone loses capacity.
3. Springing Power of Attorney: This gives the recipient the rights of an individual only after he/she is incapacitated.

All types of Power of Attorney can be limited in the scope of rights.

*Credit: Elder Law and Advocacy – San Diego

Save This Page on del.icio.us