by Ellen Mason, Hotline Attorney

Sarah is a spry and sassy 93-year-old – or “middle age” as she says. She’s totally “with it” but doesn’t want to handle her checking account and bills anymore. She wants someone to do it for her. Sarah wants a “durable power of attorney for finances.”

One of the first things Sarah needs to do is figure out who’s going to handle her finances; i.e., who’s going to be her “agent.” Sarah wanted her daughter, Rachael, to do it. But Rachael’s no spring chicken either: she’s 70. Besides Rachael doesn’t want to do it. (Actually, now that Rachael’s thinking about it, she’d like someone to handle her finances too.)

Sarah picks her granddaughter, Anne. Anne is 30, willing to do it and trustworthy. Great. Anne and Sarah go to an attorney. They tell the attorney that they want the durable power of attorney for finances to begin immediately, to end at Sara’s death, and to give Anne complete control over Sara’s finances. No problem. The attorney draws up the papers: Sarah signs them in the presence of two witnesses, who also sign the papers; and Anne signs an acceptance to act as Sara’s agent. Now Anne has complete control over Sara’s finances. If Sarah ever changes her mind, she can revoke the power of attorney and name someone else to handle her finances or Sarah can handle her finances alone as she’s been doing.

Rachael, Sarah’s daughter, went to an attorney too. Rachael wants someone to handle her money in the future if she becomes mentally incompetent. Rachael also wants there to be court oversight of her agent if there’s a problem. The attorney draws up a “springing” durable power of attorney; i.e., Rachael’s power of attorney will “spring” into effect in the future. Rachael names her son, Robert, as her agent. The durable power of attorney also requests the court to name Robert as her guardian or conservator if there is ever a protective court proceeding. This will give court oversight of Robert’s actions.

So to recap: Sarah’s granddaughter is handling all of Sarah’s finances immediately with no court oversight and no need to file legal papers with the court. Rachael’s son, Robert, will handle Rachael’s finances sometime in the future, if Rachael becomes mentally incompetent. And, if Rachael ever needs a guardian, Robert will be appointed unless there’s good cause to disqualify him.