In case a spouse becomes incapacitated, the other spouse may need to conduct certain transactions on behalf of the incapacitated spouse to either obtain care or avoid financial penalties. However, status as a spouse does not automatically grant this ability.

Even a spouse of an incapacitated person still needs a properly drafted durable power of attorney to act on behalf of their incapacitated spouse. The power of attorney may be necessary to sell or transfer property that is either owned jointly or in the incapacitated spouse’s name.

If an incapacitated spouse does not already have a durable power of attorney in place, then the other spouse will have to go to court to obtain a guardianship. Guardianship proceedings can take months and result in significant legal fees. Guardianships also require ongoing court supervision and regular filings with the court as long as the guardianship is in place.

The need to make transactions may be especially acute if the incapacitated spouse needs nursing home care and could become eligible for Medicaid nursing home coverage. The need to go through guardianship proceedings could result in a significant increase in out of pocket nursing home costs before the incapacitated spouse becomes eligible for Medicaid. A spouse may also need to make transactions on behalf of their incapacitated spouse for tax purposes.

In order to be effective, a durable power of attorney should be drafted by an experienced, local elder law attorney. Powers of attorney are governed by state law. A power of attorney valid in one state may not be valid in another state. Different states have different requirement for what constitutes not only a valid power of attorney, but can also have different requirements for what words specific powers in the power of attorney need to have.

An experienced elder law attorney will also work with a client to make sure the durable power of attorney meets the client’s specific needs, complies with all relevant legal requirements, and fits the power of attorney into the client’s broader estate plan.

To discuss powers of attorney and how they fit into your broader estate plan, please call Martha C. Brown & Associates at (314) 962-0186.