If you do not have a power of attorney, who is the person that will make your decisions for you? - Estate Planning Law Questions and Answers- LawQA.com

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If you do not have a power of attorney, who is the person that will make your decisions for you?

I am not married so there is no spouse, are the children the next in line? I have several children but I want to know if the children will all be able to make decisions or if it will only be my oldest.

Barlow Flake LLP
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In Nevada, if you are not able to make decisions for yourself and you are still alive, and if you have not signed any valid power of attorney document, it will be necessary for someone to obtain guardianship of you in order to make decisions for you. Guardianship is a court-supervised process of appointing the guardian and overseeing the guardian's care and control of you and your property. The Nevada statutes state that any qualified person that the court finds suitable may serve as guardian. In considering who is most suitable, the court will review the relationship of the proposed guardian and may give preference to those more closely related, though the court is not required to appoint the closest next-of-kin as the guardian. The need for guardianship can typically be avoided by signing valid power of attorney documents for general matters and for health care decisions. You can take the decision of who will make the decisions out of the hands of the court by designating your own agents under a power of attorney. If guardianship does become necessary, you can use a power of attorney to nominate someone to serve as your guardian so that the court is aware of your wishes. Rather than leave the decision of who will make your decisions for you to the State of Nevada, meet with an experienced estate planning lawyer to talk about your wishes and make sure your wishes are known.

Answer Applies to: Nevada
Replied: 8/14/2012

Answer By George Derieg
Law Office of George M. Derieg
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A power of attorney will allow another person to act on your behalf to make financial decisions only.

To be best prepared you need to prepare a power of attorney for financial decisions, and a medical directive for well,... medical decisions and make sure it is on file in your medical records, in the event you are incapacitated, your acting designee may make decisions for you, or at least the medical staff will know what your wishes in the event of certain medical issues.

Answer Applies to: California
Replied: 8/12/2012


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Without a power of attorney or health-care (medical) directive, no one is appointed to make financial or medical decisions for you. If you are incapacitated, someone would have to file a legal action for a guardianship or conservatorship action (states use different names for the action), usually with the probate/surrogate court.

On the other hand, you may now simply have a durable power of attorney and health care directive (or proxy, depending on what your state calls it) drafted for you and avoid the time, issues and expense of a guardianship/conservatorship action. The costs for the documents are far cheaper than a guardianship/conservatorship action.

Answer Applies to: Connecticut
Replied: 8/3/2012

Answer By Dara Goldsmith
Goldsmith & Guymon
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You should have a durable springing power of attorney drafted. Legally no one is able to make decisions just because they are a child or spouse. A child or other would need to be appointed guardian by the court to make health care or financial decisions for you. You should speak with an attorney about having powers of attorney drafted for you. Guardianships are generally expensive to administer. Best of luck in your endeavors.

Answer Applies to: Nevada
Replied: 7/31/2012

Answer By Geoff Germane

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If there is not a valid and accepted power of attorney, a conservator will need to be appointed to make financial decisions for you. The law provides a list showing the order of priority of people who can be named as your conservator, which you can view here: http://le.utah.gov/~code/TITLE75/htm/75_05_041000.htm. Generally, the person you nominate will have greatest priority, followed by a spouse and then an adult child. Even if a person has executed a document granting power of attorney, this could prove ineffective if it is too old (which may be the case even when it is only one year old) for a custodian of property (such as a bank) to be willing to accept. A conservatorship is no picnic, so other advance planning can be undertaken to avoid this possibility.

Answer Applies to: Utah
Replied: 7/31/2012


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If you don't have a POA and you become incapacitated, a court would have to appoint a guardian for you. This is not a good option. Consider having a POA. You will keep it so nobody uses it prematurely; let them know where to find it if the time comes. If you're opposed to a POA, consider placing joint names on your assets or add a trusted person as a signer on your account. POAs are not hard to do nor expensive.

Answer Applies to: Florida
Replied: 7/31/2012

Answer By Nancy Harkess

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You are able to give a power of attorney to anyone you choose, and if you are asking one of your children, it does not have to be the oldest. It's usually best to chose a person who is capable of making good decisions, will follow you wishes, and is completely trustworthy. You can name your children as successor trustees to avoid hurting their feelings and ensure that there will be someone you trust to step in if your first choice for trustee is unable to perform.

Answer Applies to: Nevada
Replied: 7/30/2012


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Admittedly your question does not make much sense. A power of attorney pertains to an individual conveying the decision-making power(s) are that person to another individual. Children usually cannot make decisions regarding themselves if they are less than 18 years old.

Answer Applies to: Rhode Island
Replied: 7/30/2012

Answer By Sean P. O'Keefe
O'Keefe Legal Services, L.L.C.
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What kind of "decisions" are you considering? Without a power of attorney to name an agent for personal, financial, etc. action, or advance directive to name an agent for health care action, or court order naming a guardian or custodian, it is unlikely someone else may make those kinds of decisions on your behalf. In the scenario you describe, someone would need to petition the circuit court to become your legal guardian. In Maryland, without a power of attorney naming your agent ("attorney-in-fact"), you will likely need a court order to appoint a guardian for someone to have authority to make decisions on your behalf. Depending on your specific goals, there may be alternate ways to accomplish them, such as holding property jointly or authorizing an agent with the applicable third party. In the Estates and Trusts Article of the Maryland Code, your children may have guardianship priority over some other classifications of people, but depending on your specific facts the children do not necessarily have the highest priority, and there may not be a priority among the children.

Answer Applies to: Maryland
Replied: 7/30/2012

Answer By Victor Varga

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What type of decisions? Financial and/or health related? Why not just have a power of attorney for both executed now so you don?t have to worry about it? Otherwise some, one, or none of your children may be able to make decisions, depending on who they are dealing with and what they are dealing with.

Answer Applies to: Maryland
Replied: 7/30/2012

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