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This article was published 16/8/2011 (2142 days ago), so information in it may no longer be current.
When is it time to take over financial affairs for a loved one?
Bill asked his two nephews whether they would be willing to take over his financial affairs if he became too old or infirm to handle it himself. The two nephews said "yes."
Bill's lawyer prepared an enduring power of attorney and Bill signed it. An enduring power of attorney is a document that gives someone else the power to handle your finances and extends that power beyond the date on which you lose capacity. Generally, a power of attorney kicks into effect on the day you sign it. It remains in effect until you die. You can revoke it if you change your mind but only if you still have your marbles on the date you try.
Bill did not need help right away. He was perfectly able to handle his own finances and planned to do so for as long as he could.
No one thought much more about it until Bill started to fail. He could not remember things as well as he used to. It got worse. He was 90 years old. The problem was plain, old-fashioned senility.
People started to notice. The nephews started to notice, too. Questions started to pop up, and the questions made them worry.
When was it time to take over Bill's affairs? Neither of the nephews was a doctor. Neither had a crystal ball. How would they know when the magic moment arrived? A banker shared his wisdom with them: "Don't worry; when the moment arrives, you'll know." They did, too. As a general rule, there is a moment of realization -- a moment where some risk flashes into sight. It could be burnt cooking pots or a day when the person wanders lost. When the moment came, the nephews spent some time with Bill. They talked to other family and friends around him. They concluded Bill was at risk if they left things alone. It was time.
What was the first step? The first thing they needed to do was ask Bill. That would not have been true if he had suffered a massive stroke and the doctors at the hospital said it was necessary to step in. Bill still lived in his condo. A person is presumed competent until declared incompetent by a judge or through a medical process mandated by statute. So they asked Bill. He said "yes." It turned out he was glad for the help. He knew he was failing. An arrangement was struck. The nephews stepped in on the understanding they would take over the chequebook and credit cards but were going to consult Bill along the way. He would continue to participate in his own affairs to the extent he was able.
What were the mechanics of taking over? The nephews had Bill sign a letter stating he had asked his nephews to start acting under the power of attorney and telling everyone they could take financial instructions directly from the boys. The nephews attached the letter to the back of the power-of-attorney document and had a lawyer make a dozen "notarial copies" of the power of attorney and attached letter. They then gave one notarial copy to each bank where Bill did business. As people asked, the nephews provided them with notarial copies. One was attached to the tax return they filed for Bill.
When Bill reached a point where he was clearly past it, his doctor started a process to have him declared incompetent. When that happened, the nephews started a formal set of books for Bill and took outright control of his assets for safekeeping. Eventually, Bill passed away. The nephews handed everything over to his executors.
Bill's story is real. Names and details have been changed to protect his privacy.
Every situation is different. Some people are stricken suddenly. Some fight the very people who are trying to help them. Some are vulnerable to predators along the way unless they are protected. If you have accepted the role of attorney, remember it is a position of trust and responsibility. You have to do a good job. Get good professional advice along the way.
John E.S. Poyser is a lawyer with the Wealth and Estate Law Group. Contact him at 947-6801 or firstname.lastname@example.org.