Can I or my nephew become power of attorney over my brother even if he is married and his wife is planning on leaving him?

Cubs101 asked...

My brother became very ill in June 11. SInce then he has been unable to walk and is dependent on everyone around him. His wife is tired of this and is planning on leaving him which would leave no one to help him. We have no idea how he is financially and she has not helped fill out any paperwork for anykind of assistance, i.e medicaid, social security, disablity etc and I need to know if myself or my nephew (his son) could become his power of attorney since she is not doing anything to assist him.

Expert Answer

Any competent adult can be appointed power of attorney by another competent adult, even if the person making the appointment is married. Although your brother's situation is an extreme one, it's not uncommon for a person to appoint someone other than his or her spouse as his "attorney-in-fact," which is the term used to describe the person who is authorized to act under a power of attorney. That person is often a close relative, like you or your nephew, but it can be anyone your brother chooses, as long as your brother is still mentally competent to make the decision.

It sounds like it might be a good idea for your brother to create the power of attorney soon, and not wait to see what his wife does. The power of attorney can be narrow or broad, depending on what your brother wants. A narrow power of attorney might be limited simply to requesting medical records, filing Social Security or Medicare or insurance documents, receiving bank statements, or the like, in an attempt to get a clear picture of what your brother's financial situation is. Or, it could be as broad as permitting the attorney-in-fact to handle all of your brother's financial matters.

Be aware that even if your brother gives you or your nephew the broadest possible financial power of attorney, it can only give the authority to control HIS portion of the assets he shares with his wife. In other words, most of his existing assets are likely to be jointly owned with his wife, so major decisions about those assets still have to take into consideration his wife's ownership share.