What happens if I do not have a DPOA?
I understand it is difficult to think about your own incapacity or even death. However, incapacity can happen at any age, and anyone over the age of 18 should know what happens if they do not have a Durable Power of Attorney (DPOA). I always point to the example of Terri Schiavo when explaining to clients the importance of having a DPOA. If she would have had a DPOA (and health care surrogate designation – but that’s a blog for another time) in place, we may not have heard about her because she would have made her wishes clear and would have appointed someone to make both medical and financial decisions on her behalf.
A DPOA is necessary so that, if you become incapacitated, someone can step into your shoes and make decisions on your behalf regarding financial issues. Married couples sometimes mistakenly believe that, because they are married, they can make financial decisions for each other. But this is not always the case. For example, if your spouse owns a bank account solely in his or her name, you cannot have access to it if you are not named on the account with them. What if you need to sell something, like real estate, that has both you and your spouse’s name on it? Can you sell the property simply because you are joint owners on the property? No, when it comes to real estate, you must have power of attorney for your spouse if you are going to sign their name on the deed to sell the property.
It is also important for parents of children who are turning 18 to make sure they have a DPOA for their children. This is especially true if you have kids going to college, and also if you have special needs children. What happens if you do not have a DPOA for your child? I had a client who was paying for her child’s college tuition. One day, she called the school to inquire about her child’s grades because she did not think her child was being honest about the grades. The client was told the school could not talk to her – the “child” was an adult who had not given authority for her grades to be released to anyone.
With regards to children with special needs, once the child turns 18, the same rule holds true – parents no longer have the authority to make financial or health care decisions for that child because they are now an adult. It does not matter that they have special needs. It is even more important, if that parent wants to continue to be involved in IEP’s, make educational decision for their child, etc., that they seek out the help of an attorney who can evaluate their special needs child, and decide if a DPOA and health care surrogate designation are appropriate for that child, or whether guardian advocacy or guardianship is necessary for the parents to continue making decisions on the child’s behalf.
If you have questions regarding your Durable Power of Attorney or would like more information, we are happy to help. Laurie Ohall is a Florida Board Certified Elder Law Attorney based in Brandon, Florida. Contact Ms. Ohall today if you need estate planning, elder law, probate or guardianship assistance.