Ask the Expert- Do I Have the Right to Control My Father’s Property?

Q: I am the beneficiary on my father’s insurance policy. Does that give me the right to control his property?

My father is 86 years old and has dementia. He never had a Will and there are seven children who would just like the house to stay in the family without any one owner. I am the sole beneficiary on his life insurance policy, so I was just wondering, am I the one who would be in control of his estate?

A: The answer to your specific question is “no.” As the sole beneficiary on his life insurance policy, you do not have the right to control his property.  Incapacity planning (Financial Power of Attorney and Advance Medical Directive) and testamentary documents (Last Will and Testament and/or Living Trust)need to be created and signed by your father to determine who will control his estate.

There is the question of whether or not your father is competent to sign documents or if he needs a guardian appointed to do so. The fact that your father has dementia does not necessarily mean that he does not have the required level of competence to sign incapacity planning documents and testamentary documents. If your father still recognizes all of his children, there’s a good chance he’s still competent to sign these documents.

The Financial Power of Attorney is an essential tool that every adult should have in the event that, due to age, illness, or injury, a person is unable to carry on his or her legal and financial affairs. Having a Financial Power of Attorney will generally avoid the need to go through the time consuming, expensive, and publicly embarrassing process whereby someone has to go to court to have a person declared mentally or physically incompetent and then have one or more persons need to be appointed to serve as your legal guardian and/or conservator, which living probate process is subject to ongoing lifetime court supervision.

A Health Care Power of Attorney (also called a Medical Power of Attorney or an Advance Medical Directive) would authorize one or more of your fathers kids (called his “Medical Agent(s)”), to make decisions with respect to his medical care in the event that he is physically or mentally unable to do so.

I suggest you and your siblings (and your father, if he is willing and able) have a family meeting to determine which of his children are going to take the lead in helping your father with his legal and financial and medical affairs by acting as your father’s agent(s). Your father’s wishes in this regard are paramount, but the willingness of the children to serve as agent(s) is also an important consideration. It is also essential that the kids chosen to act for your dad are financially stable and looking out for dad’s best interests, and not their own financial interests. After the family meeting, the children who are taking the lead should bring dad to the office of an experienced Elder Law Attorney, such as The Fairfax and Fredericksburg Elder Law Firms of Evan H. Farr, P.C. to (1) assess whether your dad is competent to sign the necessary documents and (2) prepare the necessary documents assuming your dad is competent. If his competence is questionable, the attorney may want a written opinion from a physician or other mental health professional to determine your dad’s competence before documents are prepared.

One of the main reasons to take your father to an experienced Elder Law Attorney rather than an Estate Planning or General Practice Attorney is that your father (given that he owns a house and possibly other assets) also needs to hire an Elder Law Attorney for Medicaid Asset Protection as he is likely to wind up in a nursing home and, if he does, his home will NOT be protected in Virginia and, depending on his income and other assets, may have to be sold to pay the nursing home. If dad’s goal is to keep the home in the family, this type of Asset Protection Planning is vital. The goal of Medicaid Asset Protection Planning would be to preserve the dignity and quality of life of your father, and to carry out his asset protection wishes to the extent those wishes are known. If you dad was a Veteran, then Veterans Pension Planning is another type of Asset Protection that is very important and again requires an experienced Elder Law Attorney.

To find an experienced Elder Law Attorney, you can visit the website of the National Elder Law Foundation (which lists all Certified Elder Law Attorneys in the country) or the website of the National Academy of Elder Law Attorneys (NAELA), which lists all Elder Law Attorneys. If going through NAELA, just be sure to check the background and experience of the attorney, because any licensed attorney – even those with no experience — can join NAELA.

– Evan H. Farr, CELA

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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