“I have power of attorney because I’m his wife!”

As Elder Law attorneys we always recommend that clients have current, expanded, elder-law powers of attorney.  Sometimes there is confusion around those documents and we help our clients understand the reasons why we recommend them.

First, many times a client assumes her husband can automatically act on her behalf simply because he is her husband.  Unfortunately, the law doesn’t recognize marriage as granting an automatic power of attorney.  For example, if a wife has her bank account in her name only, the bank will not allow her husband to withdraw money or otherwise manage the account.  As another example, if the wife owns a life insurance policy, the insurance company usually will not allow her husband to manage the policy or cash it in.  

We see these issues regularly when families ask us for help qualifying for Medicaid or Veteran’s Aid and Attendance.  One spouse may have capacity issues, is unable to handle his own accounts and cannot give the power to his wife now.  If he does not already have a Durable Power of Attorney, the financial institutions will not allow his wife to access his accounts and we are limited in helping them without seeking an expensive legal guardianship. 

Second, a spouse can make healthcare decisions for each other by law but that is not always in each other’s best interest.  Sometimes it is difficult to make a clear decision in an emergency.  Sometimes the couple would prefer a friend or extended family member to make the decisions.  Sometimes the spouse is also incapacitated.  If they have not clearly appointed someone else to make the decisions then the healthcare providers must follow the statute.  One family was not in touch with the adult daughter who was not only unavailable but also using drugs.  She was the statutory choice to make decisions for mom.  If mom had executed a durable power of attorney naming her brother as agent, she could have avoided complications during the emergency.

If you are thinking about end of life care decisions, long term care choices or how to help your family, let us give you the answers.  Call us today to schedule an appointment or use the contact form below.  918-901-7777

Jorjana Marx, JD  

Blaine Frizzell, JD, LLM 

Todd Whatley, JD, LLM, CELA

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