February 13, 2012
Authored by: Jordan Ware and Tanya Harvey
Question: As the parent of a child with special needs, I know I need to have a Will, and probably a special needs trust, but do I really need to have a durable power of attorney for financial affairs?
Yes. Your Will is only effective if you die, whereas a power of attorney is effective while you are alive. If you became incapacitated due to an accident, disease or other cause, no one can handle your financial affairs. At that point, someone would have to hire an attorney and go to court to seek guardianship of your assets, so they have the authority to act for you and continue to pay your and your family’s bills.
However, appointing an agent in a financial power of attorney avoids this costly court guardianship proceeding. Your agent can continue to manage your assets and use your funds to meet the financial needs of you and your family, including your children. In addition to your agent, we suggest you appoint two back-up agents, in case your first agent cannot act. This is especially important if your agent is your spouse, as you could both be incompetent as a result of the same accident. Often clients chose relatives, close friends or colleagues as agents, and it is important that you really trust your agents. Agents should have good judgment and have the financial savvy necessary to manage your affairs. Therefore, the more complex your finances, the more financially sophisticated your agents should be.
Financial powers of attorney can be effective immediately, or they can be effective upon your incapacity (usually as determined by two doctors who confirm you are unable to handle your financial affairs). The latter type is referred to as a “springing” power of attorney, as it “springs” into effect upon your incapacity.
Finally, since you have a child with special needs, if you choose to include provisions in your power of attorney that authorize your agent to make gifts or distributions to your child with special needs, you should discuss with your attorney how those powers should be restricted so that any gift or distribution that your agent makes to such child will not jeopardize his or her ability to apply for or continue to receive his or her government benefits.
Click here to learn about Tanya Harvey’s March and April presentations on “Estate Planning for the Special Needs Family” that are open to the public.