Ask Dennis
Answers to yourestate planning questions.
Hello Dennis,My father in law appears to be getting dementia and his son needs to make decision. He lease an apartment and he wants his son to be able to make decision regarding rental, handling his bank accounts and medical issues.
Will a Durable power of attorney be enough. Or does he need to be a Conservator?
Thank you for your time.
L. B.
Dear L.B.:If your father-in-law has sufficient mental capacity at this time to execute a financial power of attorney, that would be an excellent solution to allow his son to be able to assist him with his finances. He should also consider an Advance Health Care Directive and HIPAA Authorization Form if he would like his son to be able to assist with medical and personal decisions like where he lives when he no longer has capacity to make these types of decisions himself. The level of mental capacity needed to execute a financial power of attorney is the same as enter into a contract. This means that your father-in-law would have to understand the extent of his wealth and that by executing the power of attorney he is allowing his son to assist him with his finances. The level of mental capacity needed to execute an Advance Health Care Directive is the amount of understanding needed to understand medical procedures and consent to medical treatment.
A conservatorship is appropriate for these types of situations, but if his father still has sufficient mental capacity to execute a power of attorney and advance health care directive, they are much less expensive solutions to the problem.
Thank you for taking the time to submit your question and for assisted your husband with providing assistance for his father. Contact us at 951-787-7711 if you would like to schedule an appointment for your father-in-law to discuss his estate planning options.
Riverside Estate Planning Lawyer Dennis Sandoval
Dennis:
My sister and I are joint power of attorney for an incapacitated aunt. Her condo will be going up for sale. My sister sold and donated some of her house items, jewelry and furniture. She and my mother took the money for what was sold. Are they entitled to this? Doesn’t the money need to go into my aunt’s bank account? If they kept the items from her house like jewelry are they allowed? If they don’t sell it what do they do with it? Also, I am the executor of the will but I don’t think it relates to this issue.
P.B.
Thank you for your question about powers of attorney and your duties as agent.
You are correct that your sister and mother should not have kept the money from the sale of the personal property. It should have been deposited in your aunt’s bank account. An agent under a power of attorney is a fiduciary, meaning that you owe total loyalty to the person you are acting on behalf of and are to avoid conflicts of interest where possible. You are definitely prohibited from benefiting from the income and assets of the principal and you are not supposed to co-mingle your assets with your aunts. So your mother and sister should return that money and deposit it into her bank account where it should be used solely for your aunt’s benefit while she is alive.
If they also removed personal property like jewelry, they need to return that also. If you aunt still has mental capacity, she can designate where she wants it to go now. If not, you should hold on to the jewelry and disburse it upon your aunt’s death according to what her Will says. If your aunt runs out of funds and it is necessary to sell the jewelry in order raise money to support her, you should do so.
You can go here for more information about powers of attorney. If you need more assistance with fulfilling your duty as power of attorney agent for your aunt, you can call the office of Riverside estate planning attorney Dennis M. Sandoval to schedule an appointment to discuss your situation. The number to call is 951-787-7711.
Dennis M. Sandoval
Riverside, California estate planning and elder law attorney
