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My husband of 30 years put his son over him as power of attorney!! What does this mean for me as his wife?

Anderson, SC |

This worries me as far as all of our assets, where or what will be done if something happens to him. He done this without my knowledge as well. I need to know anything that would help me in the steps I need to do to protect me after 30 years of marriage!! Thanking you in advance!!!

Attorney Answers 3

Posted

There is not enough information provided to give you any more than very basic information. Most states allow POA forms that take effect either: 1) as soon as they are signed; or 2) only when two physicians or a court have certified your husband to be incapacitated. If you have the former, then how it effects you depends on the assets that you have and how they are titled. If everything is jointly owned, then your son court theoretically access (and drain) your bank accounts.

If the form does not take effect until your husband is incapacitated, it is possible his son will either not hear about that right away, or he may not even be aware he was named as agent under the form. So it may not affect you, at all.

If it were me, I would be very uncomfortable if all assets were joint, and one of my kids could access my funds, whenever they felt the desire to do so.

One of your options would be to withdraw 1/2 of the assets and place them out of the reach of your husband, (and his son). Of course, it is likely that this will be discovered, and it might open a rift between the three of you. On the other hand, you have an absolute right to feel (and be) secure financially and in your relationship.

Given this action by your husband and his failure to be open and upfront about it, it suggests that you may need to take care of your own estate planning. You may even want to consider naming someone other than your husband to make decisions for YOU, in the event you ever become incapacitated.

I am sorry you are going through this. Marriage is supposed to be a little less clandestine than this.

James Frederick

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

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Posted

Attorney Frederick is correct. I would urge you to consult with an experienced estate planning attorney in South Carolina so that he or she can review your assets and provide you with advice under these circumstances. Good luck to you.

This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship. I am licensed in Connecticut and New York and my answers are based upon the law in those jurisdictions. My answer to any specific question would likely be different if I were to review a client's file and have the opportunity to interview the client. Accordingly, I strongly urge you to retain an attorney in your jurisdiction with respect to any legal matter.

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Posted

A power of attorney allows an agent, in this case his son, to be appointed to manage a principal's assets and if it is durable then even after they become incapacitated. There are certain provisions that may affect you such as a potential gifting provision that would allow the agent to gift the principal's assets for use other then the principle's benefit. If there is gifting then the agent would potentially have access to the husbands assets, but this may potentially allow access to joint accounts or joint property between you an your husband.

If there are trust issues with the son and you are concerned that any joint assets that you hold may be affected then you may want to put your assets in your name only. Another possible course of action would be to have him revoke the current power of attorney and make a new one with you as the agent if he still has capacity to do so.

Evan Guthrie Law Firm is licensed to practice law throughout the state of South Carolina. The Evan Guthrie Law Firm practices in the areas of estate planning probate wills living trust special needs trusts personal injury accident and divorce and family law and entertainment law. For further information visit his website at http://www.ekglaw.com . Evan Guthrie is the founder of Law Student Land http://www.lawstudentland.com . 843 Area http://www.843area.com/south-carolina/charleston/legal/evan-guthrie-law-firm.htm LegalJet http://www.legaljet.com/Lawyers/Evan-Guthrie-Charleston-SC-29401-87112 Charleston Digitel http://charleston.thedigitel.com/users/ekglaw Evan Guthrie Law Firm 164 Market Street Suite 362 Charleston SC 29401 843-926-3813

This answer is for informational purposes only. This answer does not constitute legal advice, create an attorney-client relationship, or constitute attorney advertising. Evan Guthrie is licensed to practice law throughout the state of South Carolina. For further information visit his website at www.ekglaw.com <ekglaw.com>.

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