Partners in Civil Unions and Marriages Still Need Planning--Part VI of VII

Jane Doe and Janet Roe as a committed lesbian couple do not have the right to make financial decisions for each other without a financial power of attorney. The question is, will they need a financial power of attorney if they are allowed to marry? The answer is yes, for various reasons and even if married, Jane and Janet should have financial powers of attorney.

The first reason that Jane and Janet should have financial powers of attorney is that they typically would want both of them to have authority to handle the family finances even if the other were not in town to sign documents. If that is what they want, then being married is not enough. If Jane and Janet were refinancing their home and Janet suddenly had to go out of town on business, then Jane would not be able to sign for Janet unless she had a power of attorney. If the cable television account was in Jane’s name and Janet was calling to upgrade the service they were receiving, then she would probably not be able to unless she had a power of attorney. If Janet wanted Jane to call their stock broker and sell $10,000 worth of stocks from Janet’s individual account, then she would not be able to without a power of attorney. Even for married couples, a financial power of attorney is sometimes necessary to handle some transactions.

Another reason Jane and Janet need a power of attorney is in case one of them were incapacitated and the other passed on or were also incapacitated. Who would handle Jane’s finances if she and Janet were incapacitated? The answer is not as clear as with healthcare decisions, and the process of naming someone is considerably more complicated and expensive. First, Jane must be declared incompetent by a court before anyone can step in to handle things, and this is an often embarrassing procedure where an attorney should be hired to make sure it is done properly.

The second step after Jane is declared incompetent is for the court to appoint someone to handle Jane’s finances. Anyone with an interest can apply to be Jane’s conservator and gain the power to liquidate Jane’s assets, pay bills, sell Jane’s house and buy another one, etc. Jane may be concerned about who would get those powers, but a court would be there to oversee the process and make sure her assets were not being stolen. But this is also an expensive process and is not necessary if a financial power of attorney agent is handling things outside of court.

There is also a document that our firm uses just in case someone brings an action in court to appoint someone to handle finances even though there is already a financial power of attorney in place. The Nomination of a Conservator form names people your prefer to handle financial matters if a judge were to name someone. In keeping things simple, nearly all of our clients choose the same people they named as financial power of attorney agents.