Does a late life marriage affect power of attorney?

| Dec 5, 2016 | Powers Of Attorney |

Medical advances have increased our life spans considerably and, with that advanced age comes new challenges. Second and third marriages are commonplace in modern society and it’s not uncommon for a senior citizen parent to get remarried.

Finding love is a positive thing for your parent, but it can come with legal challenges for the estate. By law, most decision-making responsibilities and financial matters default to the spouse at the time of death, including making key health care choices and inheritance. It does no matter if they were married for two days or for twenty years.

Elder abuse

Remarriages present a challenge to family dynamics. Adult children often resent or do not trust stepparents, especially if there is a notable age or income gap between the new couple. Though many new marriages succeed without conflict, it is worth exploring how children can protect their parent from a potentially abusive relationship that exploits their parent’s declining health or mental limitations that come with age.

The gold digger term is often applied to a younger spouse who marries a vulnerable senior citizen, thus inheriting the estate and cheating devoted loved ones in the process. It’s a common concern of many children with parents who remarry and the vulnerability of senior citizens gives cause for concern. One in three senior citizens will die with some form of dementia, and every 66 seconds someone in the US is diagnosed with Alzheimer’s.

Power of attorney

By law, if a patient is incapable of making his own decisions then the spouse can respond in representation. That is, unless there is a power of attorney granted to a third party — often an adult child.

Power of attorney grants a range of decision-making capabilities, with health care decisions as one of the most common forms. Other powers can include access to bank accounts to cover daily expenses or investment properties. POA can be very specifically limited or wide reaching. It is spelled out by the patient and is optimally followed-up by in-depth conversations discussing personal wishes.

POA is most effective at curtailing decision-making and spending during the patient’s life. POA expires upon death and cannot be used to modify estate plans, only to control specific matters related to daily life. Some POA rights may conflict with jointly held bank accounts or other properties that share the name of your parent and his new partner, so maintaining a cordial relationship is ideal in any situation.

Protection of estate

Estate plans can protect assets and guarantee their distribution to children from a previous marriage. Many trusts feature language to note that inheritance will not change regardless of the patient’s marital status, for example. A living will should be amended after a late life marriage to acknowledge the situation and to state your parent’s wishes.

Full spectrum of protection

With mental faculties impacted by age, many couples make less competent decisions than they did while younger. The new spouse may also suffer from dementia or other concerns, further complicating the picture – and the dynamic is additionally complex if there are stepchildren from her side of the family now included in decision-making.

Prior to any late in life marriage, legal concerns with the estate should be set in stone and planned carefully to protect all the loved ones. This means decision-making responsibilities should fall with the most trusted body and estate plans should be ironclad and protective. Honest conversation before any conflict is always the best approach and the earlier these potential challenges are addressed, the most peacefully everyone will accept them.