Often, married couples sign each other’s names to checks, documents, and birthday cards. According to the old joke, “If he actually signed his name, the bank wouldn’t recognize it.” However, except for the birthday card forging, signing your spouse’s name is illegal. This means, even if you’re married, you need a power of attorney to authorize you and your spouse to sign each other’s names.
A power of attorney is a legal document through which you authorize an agent (e.g., your spouse) to sign your name if it is inconvenient for you to do so or if you become incapacitated.
The power of attorney is incredibly important if you become incapacitated through a medical condition, car accident, fall, or dementia. If your spouse doesn’t have a power of attorney, authorizing him or her to step into your shoes and act on your behalf, the court will intervene.
When the court intervenes, it may freeze your assets (even those assets you own jointly with your spouse) and your spouse may have to seek to be named as conservator of your assets. The court doesn’t always name a family member as conservator, especially if the spouse is aged. The court may appoint a stranger to take over your finances.
The conservatorship process is expensive because there are court, attorney, accounting and medical witness fees. Contested conservatorships can cost thousands of dollars. A contested conservatorship is one in which the family members either disagree that the individual is legally incapacitated or they disagree as to who should be named conservator.
If you are married and don’t have an up-to-date power of attorney, consult with an experienced, qualified estate planning attorney and get one in place. Also, ask about the medical power of attorney, also known as an advance health care directive, so that your spouse is authorized to make medical decisions on your behalf.
It would be prudent to avoid internet or other boilerplate powers of attorneys found on CDs and form books. They are frequently deficient and incomplete and, unless properly completed and notarized, may not be accepted by many companies.