Yes, I do know that today is Thanksgiving Day – Happy Thanksgiving!
I also know that the whole world is writing about it, and undoubtedly more poignantly than I, so I’ve decided to ignore it. Read this later in the day and think of it as “leftovers.”
Last week I went on about powers of attorney (POA’s) and durable powers of attorney DPOA’s), and was going to move seamlessly, if not stealthily, into guardianships, but a number of you have e-mailed with some disturbingly intelligent questions, so let’s do those first.
Can a POA or DPOA be revoked? You bet, anytime. All you have to do is give written notice of same to the “agent” (the person who you originally designated to make decisions) and to anyone who is relying on that DPOA like, say, a bank. IF you filed the DPOA with a County, file the revocation in the same place. By the way, guardianships can be revoked, too.
Contrary to popular opinion, a POA/DPOA does NOT give the agent the right to do anything and everything; for instance, they cannot put you someplace that you don’t want to be (think, “nursing home” – Of course, you have to be willing to say “No!”). A separate court order is usually required for an amputation, shock therapy and certain mental health treatments that restrict a person’s freedom of movement; also, an agent can’t vote on your supposed behalf nor can she/he make or alter your will.
Does a POA/DPOA have to be notarized? Sometimes, most notably if the agent is likely to have to sell, transfer, encumber or in any way mess around with real estate; otherwise generally not – HOWEVER, it might be smart, on general principles: It makes everything more “official,” so might help to smooth the way for your agent to do what has to be done, say, with a bank.
Can I give a grant a POA/DPOA to more than one person at a time? Well, yeah – It’s certainly smart to name a “backup” in case Choice #1 goes down – But the real question had to do with a situation in which Mr.-&-Mrs. didn’t want to appear to be showing “favoritism” between a son and a daughter.
Can you do that? Yes, you can, but please be…darn sure you want to! If ever there was a situation ripe for conflict, disagreements and resurrecting old wounds from grade school, this is it! And if they do manage to “compromise,” will that compromise be what you’d want? Remember, making decisions as close as humanly possible to the decisions that you’d make for yourself is the point of this whole thing! But, can you do it? Yes.
Now, think about that, in a general sense: You’re granting someone the legal right and ability to, in most cases, make a lot of important decisions AND move money around AND likely make decisions about what healthcare you might get under what circumstances and tra la – This is IMPORTANT! And, again, the idea is to appoint someone who will likely respect your own values and wishes and someone YOU CAN TRUST!
I’m reminded of the gal I sat with several years ago, having this very conversation. We got to the part about which of her several children might be the choice as her agent, and she was thinking out loud when she said, “Well, Benny really is such a good boy, when he’s not in jail or doing those nasty drugs…” It made my head hurt. We talked for quite a bit longer.
Speaking of “trust,” generally speaking, there is no court supervision of a POA/DPOA, while there is under a guardianship, so we’re a little more “vulnerable” to stupid, greedy or vengeful agents. Oh, sure, courts can be requested to decide this-or-that or order this-or-that or change this-or-that, but that rarely happens so, again, be as sure as you can that your agent actually like you.
And, again, do you have to have an attorney do a POA/DPOA? No, you don’t – I wish you would, but no.
Certain DPOA’s are written in such a way that they only kick-in in the event of an event, e.g. two physicians certify that you’re incapable of calling your own shots (or one physician, or whomever or whatever), so think about that. I often get calls that start with, “I have a DPOA for…”, and my first question is always, “Has it kicked-in?” Until it has, it’s just a piece of paper.
Well, so much for getting to guardianships today, but I don’t suppose they’re going anywhere, so we’ll try again next week. At the risk of overstating the painfully obvious, keep in mind that I am NOT an attorney – I’m a social worker – And in some sectors, even that can be successfully argued.
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