We are a country with a fierce pride and legal basis in personal rights.  Of all our personal rights to things like free speech, life, liberty, and the pursuit of happiness, the right to make decisions for yourself as an adult is one that is very difficult to be taken from you.  And that’s exactly how we want it to be.  That is until you need someone to help you…

What happens when you or someone you know is incapacitated by accident or illness (think Alzheimer’s or dementia) and you have to access their money or assets to help them?  Will a Power of Attorney do the trick?  Maybe and maybe not.  You need to read this because it could impact you or a loved one.  Trusted legal documents may fail to facilitate an easy way for a successor trustee to help in the case of incapacitation.

A
recent escrow sunk three days before it was due to record.  Why?

The buyer was buying a home as a general partnership which consisted of him and his sister.  We discovered the issue when the escrow officer requested that she set up a time to sign at the title company.  Unfortunately, that wasn’t possible because she was completely incapacitated with dementia and in a care home.  The brother wanted to use the money from the general partnership to purchase a home that would generate income to pay her monthly expenses which were turning out to be costly.

It
turns out that even though the general partnership was set up to allow brother
and sister to buy and sell real estate.  It stipulated that both parties
had to sign and even though the brother held a power of attorney for his sister,
title wouldn’t allow the Power of Attorney to sign for the sister! 

The
terms of the general partnership dictated only what would happen if one party
died.  Nothing was mentioned about incapacitation.  Remember, this
doesn’t have to happen to someone older.  It can happen when someone
becomes incapacitated by accident or illness and is unable to sign – think car
accident and coma or any number of other incapacitating events.

According
to Attorney at Law, Matthew Kirkpatrick from BPE Law Group in Gold River,
“while an individual can execute a power of attorney to allow someone else to
sign on their behalf (either immediately or while incapacitated), proper
language in a trust is required to identify defined events such as
incapacitation that trigger the transfer of decision making authority to a
successor trustee.”

Check
your trust.  Do you have a clause in there for incapacitation?  Maybe
you should.  If you don’t have a Trust attorney, call the BPE Law Group so
that a successor trustee can act on your behalf.