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What Can Happen If You Become Mentally Incapacitated in Massachusetts But Have Not Executed a Durable Power of Attorney?

February 13, 2012

A new case that I am handling highlights why I often say that a durable power of attorney can be the most important document in a person’s estate plan. 

The current wife of a fairly young mentally disabled man (who I’ll refer to as Craig) recently came in to see me about his situation.  Craig had suffered a traumatic brain injury a few years ago, and his mental condition had been in decline.  Fortunately, he had signed a Massachusetts Health Care Proxy, so his wife was able to make appropriate health care decisions for him.  The hospital was trying out various antipsychotic medications to attempt to stabilize him mentally, and his wife had the authority as his Health Care Agent to consent to the medication treatment plan.  It was anticipated that Craig would not be able to return home, and that he would need to be placed in a nursing home once his mood swings had been stabilized.

To get Craig moved to an appropriate nursing home, his wife needs to prove to nursing homes that there is a payment source.  This married couple, like most others, doesn’t have the funds to be able to afford nursing home bills out of their private funds, so they need to apply for MassHealth for him.  Unfortunately, Craig has a bank account in his own name, and his wife has no access to those funds and cannot request the 5 years of bank statements that are required for the MassHealth application.  If Craig had executed a durable power of attorney, his wife (or someone else who was appointed) would have been able to take these actions, but without it, she needed to petition the Probate Court to be appointed Conservator.  Unfortunately, the basic conservatorship process can take 2-3 months, and there was an immediate need to handle Craig’s financial affairs, so we needed to add an expensive lawyer onto the process and have his wife appointed Temporary Conservator.

There is a complicated wrinkle in this case, as several years ago Craig’s mother set up a trust for him and his children from a prior marriage, and Craig is the trustee; at some point, his mother also added his name as a joint tenant on her CDs and bank accounts.  All of what Craig’s mother had done affects his MassHealth application and the conservatorship .  Once the judge learned about these complexities, a Guardian ad Litem was appointed for him to file a written report with recommendations with the Probate Court, and Craig also had a lawyer appointed to represent him.

Therefore, at some point in the near future there will likely be a meeting involving (1) me, representing the wife not individually but in her capacity as Temporary Conservator; (2) the lawyer appointed to represent her husband’s interests aggressively; (3) the lawyer who was appointed Guardian ad Litem, and (4) a lawyer representing the children from his previous marriage.  Just imagine how expensive that meeting will be, and how expensive the overall conservatorship will eventually be if all of us don’t completely agree on a plan.  Even if we all come to a quick agreement, the fact that there are four lawyers, along with the need to get Probate Court approval, still means that the process will cost thousands of dollars.

All of the conservatorship complexities of this case could have been avoided if Craig had executed a detailed durable power of attorney.  (I don’t mean a generic form that can be found on the internet, but rather a durable power of attorney that deals with the document signer’s specific assets and issues.)  This case is a great lesson on why a detailed durable power of attorney drafted by an experienced elder law attorney can often be the most important document in a person’s estate plan.

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