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Don’t Wait until the Last Minute to Tackle the Legal Problems Caused by Incapacity

There’s a natural human tendency to kick cans down the road when we can, and to put off those things that just don’t seem imminently necessary. People enter into Legal arrangements without writing documents. They avoid signing Wills or Powers of Attorney because they feel well and everything seems fine. And when a family member is developing signs of incapacity — whether that’s due to the onset of dementia, a history of alcoholism, or some other brain trauma– the spouse or the family often just drifts along, adjusting the daily routines to keep that person safe but not addressing the looming legal issues. It when something important has to get done — financial, medical, legal — and  they discover that  no one has any actual legal authority to get it done, that there’s a crisis.

A case in point is when a house needs to be mortgaged or sold. This legal transaction can only be carried out by the homeowner or his/her lawful agent — Guardian or Agent under Power of Attorney. One spouse can’t simply sign legal documents on behalf of the other spouse. A closing can come to a grinding halt if one party to the transaction lacks  legal capacity to participate, and there’s no signed power of attorney document. Under the best of circumstances it can take three months to initiate and conclude a petition for guardianship. Now, in some counties, it’s even longer than that. Meanwhile a deal could fall through.

Another example is a court case in which it turns out that one of the parties  lacks capacity to proceed. This might be a matrimonial action, a suit for damages, a bankruptcy or any other kind of case. In many instances, a well-constructed power of attorney document (POA) can provide all the authority that may be needed, but in the absence of a POA, or in certain areas of legal actions,  a guardian has to be appointed. Months may go by as a guardianship action or protective arrangement action is pursued.

Careful planning can create a crisis. Call us for help with senior care planning needs…. 732-382-6070

 A post by Linda Ershow-Levenberg, Esq. for Fink Rosner Ershow-Levenberg Blog.

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This post first appeared on VA Benefits News Archives - Fink Rosner Ershow-Lev, please read the originial post: here

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Don’t Wait until the Last Minute to Tackle the Legal Problems Caused by Incapacity


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