
My husband is 74 and is in a memory care facility. I recently had a consultation with an elder law attorney to revise my will and to secure a deed of survivorship on my home. The attorney wants me to go the court and get guardianship. I don’t really want to do that. He signed the POA before he was found to be incompetent but was diagnosed with mild dementia a few weeks before. So the attorney says it could be challenged. My husband has two grown daughters. I have three grown children. We have no children together. We’ve been married 23 years. I’d rather not have to go through the guardianship process if it isn’t necessary. I’m considering seeing a different attorney but the last consultation cost $400 in advance.
Both guardianship and the POA only apply before death, they don't upset a will. The cost of a guardianship application would come out of you and your husband’s funds, and reduce what you and the five children could receive. Yes, I’d find a different attorney (or none at all – why did you see this one?).
Has any bank, facility, or institution refused the POA?
Are either of his daughters likely to challenge your decisions later?
Was the POA signed with witnesses/notary and apparently competently?
Did the signing attorney document his capacity?
Are you planning major asset transfers or Medicaid planning?
When you both went to create his PoA, did the elder law attorney interview him privately to assess his capacity and make sure he wasn't being coerced? If so (and it's the same attorney) then I'm not sure why he isn't confident about the PoA being challenge-proof. That being said... money (or the anticipation of an inheritance) can change people and a power struggle can ensue.
If the PoA was created from online documents (like I've done it through LegalZoom.com) then this would be very challengeable by his daughters since there was no pre-creation interview for capacity and the diagnosis came suspiciously close after the PoA was created.
One thing to remember is that if you are close in age to your husband and you become his guardian and then *you* develop dementia or some incapacity that means you can no longer take care of him or his affairs... ask the attorney what happens in this case. I don't know the answer or know of any examples of this.
I personally see why your attorney suggested guardianship but you need to make the decision fully informed of all possibilities and cover all the bases: find out what happens if his guardian can no longer carry out their responsibilities (which will also be financial responsibility) and courts are not happy about family guardians resigning and may not allow it. This may vary by state.
Did he name a second back-up PoA in his document?
So, you got married to each other when you were in your early 50s and your kids were presumably 18-ish or so and you maybe didn't raise his daughters much. Do you have a good relationship with them right now?
Families that are blended later in life can develop strained dynamics once their parents become elderly is there isn't a solid relationship with their step parent, and especially if there hasn't been good communication about health issues like dementia.
I think if you have a very good relationship with both his daughters, then maybe you can get away without a guardianship. It's a risk that, if you lose, can have some pretty severe consequences for you in your senior years.
Hopefully one or more of your daughters is your DPoA right now.
And as said, your POA stops at death. The Executor takes over when they go to probate which can't be done in my State till 9 or 10 days after death. Any contesting his children may do is done during probate.