Who's In Charge Of Mom And Dad?

Unfortunately, something we see frequently in our office are disagreements among siblings over who is in charge of caring for mom and/or dad when they become incapable of caring for themselves. Who decides who is in charge and what limits are there that person?

Mom and dad can decide for themselves who will be in charge be executing powers of attorney. Illinois law provides for two types of powers of attorney – one for property and one for health care. Every adult should have both powers of attorney. They must be signed by mom and dad while they are still competent. It is too late when mom or dad has had a stroke or dementia or Alzheimer's has set in and mom or dad no longer knows what he or she is doing. It is possible to sign the documents if in spite of a stroke or early dementia or Alzheimer's mom or dad still knows what he or she is doing, however, far too many people only go to the lawyer when it is already too late.

The property power of attorney governs all types of financial transactions unless the principal (mom or dad) specifies otherwise. Authorized transactions include those regarding: real estate; financial institutions; stocks and bonds; tangible personal property; safe deposit boxes; insurance and annuities; retirement plans; social security, employment and military service benefits; taxes; claims and litigation; commodities and options; business operations; borrowing; estates; and all other property powers and transactions.

A property power of attorney does not automatically include the power to make gifts of the principal’s property. The power to make gifts must be specifically added to the power of attorney. The power of attorney also does not include the power to change a trust agreement or make a will for the principal.

As its name implies, a health care power of attorney governs medical decisions. It governs all medical decisions including organ donation and the termination of life support (as specified by the principal in the power of attorney). A health care agent has the power to admit the principal to a hospital, nursing home or institution. However, the principal can revoke the health care power of attorney at any time, even if he is not competent. Therefore, it can be difficult if not impossible to involuntarily commit someone for mental health treatment using a health care power of attorney.

Both the Illinois property power of attorney and health care power of attorney forms include a section stating that if a guardian for the principal is ever necessary, the principal asks the court to appoint the agent under the power of attorney.

The Illinois legislature recently redrafted the property and health care powers of attorney. The new forms became effective on July 1, 2011. Powers of attorney signed before July 1 are still effective, however, if you are signing one after July 1, be sure you have the new form. The new health care power of attorney provides that the agent also has authority over the disposition of remains of the principal, including where to bury the principal, whether or not to cremate the principal, etc. This is a new, somewhat unrelated power, and many people may choose to delete it.

The new forms clearly state that a principal cannot name joint agents under the powers of attorney, i.e., mom and dad cannot name two or more children acting together. On a practical level, this is the best practice anyway, as appointing multiple agents can result in disagreements and an inability to use the power of attorney. If mom or dad are determined to name multiple agents, however, they can do so. The statutory forms are not the only forms of power of attorney that can be used in Illinois.

If mom or dad does not have a power of attorney, then what? For financial transactions, unless someone else has signing authority over certain assets (including, for example, if the assets are held in trust), the only other option is to have a guardian of the estate appointed. If mom or dad does not object to the guardianship or if they are undeniably incompetent, this can be a relatively straight forward procedure. An “interested person” (generally a family member) file a petition with the court. The petition must include an affidavit from a doctor stating that mom or dad is incapable of handling their own affairs. Mom or dad must be served with process, i.e., the Sheriff’s office or a private process server must deliver the papers to them, and all other interested parties must receive notice as well. This includes a spouse, adult children, parents, adult siblings and any agent acting under a power of attorney.

The court will appoint a guardian ad litem to meet with mom or dad and report back to the court if he thinks a guardian is needed and if the proposed guardian is acceptable. If mom or dad wants to challenge the guardianship proceedings, he or she will also hire a lawyer or the court will about one for him or her.

If the family is in agreement on who should be designated guardian, the court will generally appoint that person. If there is not an agreement, the court will first look to the person designated by the incapacitated person. As stated above, the statutory powers of attorney both include a statement that the principal desires that the agent named under the power of attorney be appointed as guardian. The appointment of a guardian does not void a power of attorney unless the court so provides. So, it is possible to have a guardian with authority over some matters and an agent under a power of attorney with authority over other matters.

So, what happens if mom appoints your brother as power of attorney and you think he is misusing mom’s money or making bad health care decisions for her? You can ask the court to order your brother to provide a full accounting for financial matters or ask the court to order a change in medical care. If your brother refuses to do so or if improper conduct is found, the court can remove your brother as power of attorney and allow the alternate agent to serve, if there is one, or appoint a guardian for mom. Similarly, if your brother is serving as guardian, he must file an accounting with the court. If you believe he is not properly caring for mom, you can file an objection to the accounting.

In order to avoid these disputes between siblings, the best practice is transparency. Mom and dad should tell the children who they have designated as power of attorney so the children know that is what mom and dad want. The power of attorney should keep the other siblings informed of his actions. If no information is provided, it is easy to suspect the worst. Finally, if you think a power of attorney is being abused, act sooner rather than later. There are too many cases where a power of attorney used all of mom and dad’s money, and by the time it was discovered, it was too late.

by Sarah Delano Pavlik