It is surprising how often we hear of situations in which a person passed away unexpectedly or had a catastrophic accident or stoke, and various family members or good friends start trying to find out information or even start trying to gain access to savings, investments and assets without any authority to do so. Oftentimes, energy is spent before legal advice is obtained. Sometimes, tremendous fights ensue. These issues are bad enough when the individual has no spouse or no children — there may be a certain group of nieces, nephews or cousins who believe they are the rightful heirs or the rightful decision-makers — but the issues can be magnified where there are children from a prior relationship as well as a current spouse.
Once a person is divorced, any prior designation of their now ex-spouse as a fiduciary in a Will or Power of Attorney or Health Care proxy is deemed to be voided. In some circumstances, that can leave the individual without any fiduciary. Remarriage by itself doesn’t grant actual fiduciary authority to one spouse over the other. Signing a new set of estate planning documents is very important. The individual can specify who has the decision-making authority in the event of incapacity, and who will be the Executor of the Estate. A carefully written set of documents will address any necessary interplay between the second spouse and the individual’s children. Are adult children entitled to continue to live in the marital home if their parent is now incapacitated or deceased? Are they required to pay expenses or rent? If the incapacitated parent was supporting adult children, is the Agent under Power of Attorney obligated to continue this pattern? Many issues can be addressed through careful planning and signed legal documents.
If an individual becomes incapacitated and never signed any power of attorney, there may be a need for someone to pursue Guardianship to attain authority to make decisions and handle real property and other assets. At times, we have to dash into court with a petition for some emergency authority. In situations where there is a second spouse and children from a prior relationship, a guardianship action may become contested, leading to extensive and expensive litigation over who is entitled and best suited to be appointed as Guardian.
A spoken statement doesn’t create a Will. A spoken promise doesn’t create a power of attorney. A person’s belief that they were authorized to handle someone’s financial matters doesn’t translate into authority without having it in writing.
Thoughtful estate planning can go a long way to prevent crises and litigation, and thoughtful updating of estate plans on a regular basis — especially after a major life event such as marriage — can help ensure that your wishes will be carried out.
To discuss your NJ elder law matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq., of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Elder Care Attorney