There are few situations as heartbreaking as watching your spouse develop and suffer from the symptoms of Alzheimer’s or another form of dementia. In some cases, your partner may have mild indications such as some limited memory loss while in others, they may have severe confusion which interferes with his or her ability to attend to their most basic needs. When the impaired spouse still has access to the household finances, it can raise a concern regarding marital assets.
Marital Property
In Michigan, the property a couple acquires during their marriage is considered their joint or marital property. Under ordinary conditions, each member of the couple will have the right to withdraw funds from shared accounts and to use their other combined resources. When one partner has a cognitive impairment, they may not make appropriate decisions with these joint funds and assets. For instance, an impaired spouse may erroneously write a check to someone for $10,000.00 from an account which is connected to the couple’s savings. If this check were cashed, absent extraordinary evidence of duress or fraud on the part of the recipient, the couple could have little recourse to reclaim the funds.
Durable Power of Attorney for Finance
One way to protect your marital assets is to have your spouse create a durable power of attorney for finance. A power of attorney allows the individual to designate someone to make financial decisions for them should he or she become incapacitated. In the case of a married couple, this is usually the person’s spouse. While this device can help a spouse protect their marital assets, the impaired individual will need to create their power of attorney for finances before they become incapacitated. Once the impaired spouse no longer has the capacity, signing legal documents is no longer possible.
Conservatorship
If your spouse has not created a power of attorney for finance and then becomes incapacitated, you may have to ask the court to appoint you as their legal conservator. To start this process you or another concerned party will have to file paperwork with the probate court stating that your spouse lacks capacity and therefore needs a conservator to make financial decisions on their behalf. In many cases, the individual’s spouse will become the conservator, but it is possible that the court could name someone else. Once the conservator is appointed, he or she will be responsible for managing the person’s finances and related interest. The conservator will have to report to the court and maintain records of how they are performing their duties. We always look at a conservatorship as a last resort because it is time-consuming, expensive and emotionally draining. Planning ahead with a durable power of attorney will generally keep the court out of your life and your business.
Practical Considerations
If you are in a situation where you and your spouse are not able to effectively communicate because of their condition, you should consider taking their credit cards, debit card, and checkbook and moving all of your joint assets into accounts which are solely in your name. Additionally, if they have access to your digital accounts, change the passwords and take over any online bill paying responsibilities. If you are concerned about your spouse becoming upset, you could work out an arrangement wherein they will have some cash or a limited spending device such as pre-paid debit card to make purchases.
One other thing – not all powers of attorney are created equal. We review powers of attorney all the time that are defective or don’t have broad enough powers in them to work effectively, especially in situations involving long-term care and asset protection.
Making these adjustments to how you and your spouse handle your finances can be difficult especially if your spouse’s condition has advanced to the point of impairing their ability to process information. However, with careful planning, you can protect your marital resources in this situation. We have experience helping married clients plan for their assets in this circumstance and can provide you with the guidance you need. Please contact us online or by phone if we may be of assistance.