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Caring for incapacitated family members

June 05, 2014
Q. If my loved one becomes incapacitated, can I arrange for his or her care and manage the financial affairs?

A. There is no inherent right to act for another person who is incapacitated based on a relation to them, except for a parent/child relationship. Express legal authority is required to do so. This applies to anyone age 18 and older.

Q. How does one obtain express legal authority to act for another?

A. It depends on whether or not authority was given to another to act for the incapacitated person before they became incapacitated.

No authority prior to incapacity — Petitions for guardianship and conservatorship must be filed with the county probate court.

A hearing is held to determine incapacity based on evidence presented and the petitioner or another person is named guardian, conservator or both. This proceeding is public and the guardian/conservator is under continuous court supervision, having a duty to make reports and perform other acts. These arrangements are expensive, time consuming and often continue for a considerable period of time.

Authority prior to incapacity — The guardianship/conservatorship route can be avoided by using private durable powers of attorney and designating a patient advocate.

A power of attorney is a document signed by a person who authorized another to act on his or her behalf. It is "durable" if it expressly continues even when the person issuing the power becomes incapacitated. Durable powers of attorney are issued for both financial affairs and healthcare decision-making. Michigan law authorizes a patient advocate to act for an incapacitated person regarding healthcare and end-of-life decision-making.

Durable powers of attorney can only be signed by a person who can make informed decisions regarding the matters the document addresses.

Significant time, privacy and expense can be saved by having these documents prepared and signed prior to becoming incapacitated. These documents are inexpensive compared to court proceedings.

Q. Can I add a person to my bank account so that person can write checks, pay my bills and take care of ordinary, regular financial affairs on my behalf?

A. Yes. However, once you add an owner on an account they can withdraw the balance and use the money for their own purposes. A durable power of attorney can allow another person to handle these functions and obligates them to act strictly in the best interests of the account holder. While some persons add loved ones as account owners to facilitate inheriting the money without going through probate, there are other ways to avoid probate without naming an additional owner.

Kelly has been a licensed attorney in Michigan for more than 23 years practicing in the areas of estate planning, elder law and probate, focusing on long term care planning/Medicaid planning and assisting families with probate matters.

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