Estate Planning

Do kids have other option when there is no adult at the time their parents become incapacitated based on the Will and EPOA prepared?

Complete Question: 
I've prepared the attached EPOAs and wills for my client. For the EPOAs the line of succession for husband/wife is each other then their kids. Their kids are currently around 10 years old. If both husband/wife become incapacitated at same time and their kids are not 18 what happens based on this document? Should they have a further option for succession should there be no adult at the time? And will that person automatically be the attorney if kids are 18 or do I need to edit document to ensure that occurs?

Answer: 

An enduring power of attorney (EPA) is a legal document that allows an individual (the donor) to appoint one or more persons (the attorneys) to make decisions on their behalf, typically in situations where the donor becomes unable to manage their own affairs. In the scenario, the wife is the primary attorney, and the minor children are presumably designated as alternate or successor attorneys.
If the wife is unavailable to serve as the attorney, and the children are legally unable to take up the role due to their age, there could be several problems:
  1. The donor's financial and legal affairs may be left unmanaged, leading to potential financial hardship or legal complications.
  2. The donor's healthcare and personal care decisions may not be made in a timely manner or according to their wishes.
  3. In some jurisdictions, if no suitable attorney is available, a court may need to appoint a guardian, which can be a lengthy and expensive process.
To prevent these problems, consider the following steps:
  1. Appoint multiple attorneys: The donor should consider appointing more than one attorney to act jointly or severally. This way, if one attorney is unavailable, the other can step in. When appointing multiple attorneys, ensure they can work together and are aware of their responsibilities.
  2. Appoint successor attorneys: In addition to the primary attorney, the donor can name one or more successor attorneys who can take over if the primary attorney is unable or unwilling to act. Make sure to choose a successor attorney who is of legal age and capable of taking on the role.
  3. Review and update the EPA regularly: The donor should periodically review their EPA and update it as needed to ensure that it continues to reflect their wishes and circumstances. This includes updating the designated attorneys if any of them become unable or unwilling to act.
  4. Inform relevant parties: Make sure that the appointed attorneys, family members, and other relevant parties are aware of the EPA and its provisions. This can help prevent confusion and potential legal issues in the future.
Remember, it is essential to consult with a legal professional to discuss your specific situation and the applicable laws in your jurisdiction
 
Please be advised this is general information only, and is not to be taken as legal advice. If you would like more information, or have a legal query, please contact Abbott & Mourly directly.
Reviewed: 17/01/2024