If you do not have a power of attorney, who is the person that will make your decisions for you?

Question

I am not married so there is no spouse, are the children the next in line?  I have several children but I want to know if the children will all be able to make decisions or if it will only be my oldest.

Jonathan W. Barlow · Answer

In Nevada, if you are not able to make decisions for yourself and you are still alive, and if you have not signed any valid power of attorney document, it will be necessary for someone to obtain guardianship of you in order to make decisions for you. Guardianship is a court-supervised process of appointing the guardian and overseeing the guardian's care and control of you and your property. The Nevada statutes state that any qualified person that the court finds suitable may serve as guardian. In considering who is most suitable, the court will review the relationship of the proposed guardian and may give preference to those more closely related, though the court is not required to appoint the closest next-of-kin as the guardian.  The need for guardianship can typically be avoided by signing valid power of attorney documents for general matters and for health care decisions. You can take the decision of who will make the decisions out of the hands of the court by designating your own agents under a power of attorney. If guardianship does become necessary, you can use a power of attorney to nominate someone to serve as your guardian so that the court is aware of your wishes. Rather than leave the decision of who will make your decisions for you to the State of Nevada, meet with an experienced estate planning lawyer to talk about your wishes and make sure your wishes are known.

George Derieg · Answer

A power of attorney will allow another person to act on your behalf to make financial decisions only. 

To be best prepared you need to prepare a power of attorney for financial decisions, and a medical directive for well,... medical decisions and make sure it is on file in your medical records, in the event you are incapacitated, your acting designee may make decisions for you, or at least the medical staff will know what your wishes in the event of certain medical issues.

Vincent Liberti · Answer

Without a power of attorney or health-care (medical) directive, no one is appointed to make financial or medical decisions for you.  If you are incapacitated, someone would have to file a legal action for a guardianship or conservatorship action (states use different names for the action), usually with the probate/surrogate court.  

On the other hand, you may now simply have a durable power of attorney and health care directive (or proxy, depending on what your state calls it) drafted for you and avoid the time, issues and expense of a guardianship/conservatorship action.  The costs for the documents are far cheaper than a guardianship/conservatorship action.

Dara J. Goldsmith · Answer

You should have a durable springing power of attorney drafted.  Legally no one is able to make decisions just because they are a child or spouse.  A child or other would need to be appointed guardian by the court to make health care or financial decisions for you. You should speak with an attorney about having powers of attorney drafted for you.  Guardianships are generally expensive to administer.  Best of luck in your endeavors.

Geoffrey Germane · Answer

If there is not a valid and accepted power of attorney, a conservator will need to be appointed to make financial decisions for you.  The law provides a list showing the order of priority of people who can be named as your conservator, which you can view here:  http://le.utah.gov/~code/TITLE75/htm/75_05_041000.htm.  Generally, the person you nominate will have greatest priority, followed by a spouse and then an adult child.  Even if a person has executed a document granting power of attorney, this could prove ineffective if it is too old (which may be the case even when it is only one year old) for a custodian of property (such as a bank) to be willing to accept.  A conservatorship is no picnic, so other advance planning can be undertaken to avoid this possibility.

Robert Slotkin · Answer

If you don't have a POA and you become incapacitated, a court would have to   appoint a guardian for you.  This is not a good option.  Consider  having  a POA.  You will keep it so nobody uses it prematurely; let them  know where  to find it if the time comes. If you're opposed to a POA,  consider placing  joint names on your assets or add a trusted person as a  signer on your  account.  POAs are not hard to do nor expensive.

Nancy Harkess · Answer

You are able to give a power of attorney to anyone you choose, and if you are asking one of your children, it does not have to be the oldest.  It's usually best to chose a person who is capable of making good decisions, will follow you wishes, and is completely trustworthy.  You can name your children as successor trustees to avoid hurting their feelings and ensure that there will be someone you trust to step in if your first choice for trustee is unable to perform.

James Weiner · Answer

Without a power of attorney the probate court has to get involved to appoint a guardian if you are not able to take care of yourself generally your oldest kid might have priority but that is not a definite.

Candace Ladley · Answer

If you do not have powers of attorney for finances and health care then your children will have to petition the court to be appointed your conservator/guardian. That is an expensive procedure. It is better to have the powers of attorney in place.

Brian Haggerty · Answer

In Oregon, if no one is appointed agent under a power of attorney, then financial decisions can only be made for you by a court-appointed conservator.  This will be whoever successfully petitions to be named conservator. You can create a document naming your preference for someone to serve as conservator.  In some cases, it is better to have the court-supervised process.  An agent under a power of attorney can run wild, making decisions in his or her own benefit rather than yours  they're not supposed  to, but it happens all the time. A conservator has to account annually, so it is harder in this process for theft, or just bad decisions, to occur.

Thomas Edward Gates · Answer

Besides a Power of Attorney, you may have a Guardian appoint to handle your affairs.    If you desire to select someone with Power of Attorney on your own and, while you are  still able to do, you may give this power to one or more individuals.  You may place specific limits on the powers you wish this individual to have and whether these powers will become effective immediately or when you become incapacitated.  I generally, recommend that only one individual and no more than two be appointed your Attorney-in-Fact.  If there are more than one individuals, they must all agree to the action proposed.

S Hunter · Answer

If you do not designate someone as your power of attorney then no one is able to make decisions for you in the event that you become unable to make them on your own. Your family members will have to petition the probate court and get either a guardianship or conservatorship or both to handle your affairs for you.

James Frederick · Answer

If you do not have a POA, then NO ONE has legal authority to make decisions for you, if you become incapacitated. There are some doctors and hospitals that might agree to allow family members to direct things, but if there is more than one child and they are not unanimous in how they want to proceed, then you are out of luck.  In most cases, without a POA, you would need to have probate proceedings for guardianship and conservatorship. This costs about $1,500-2,000, and can take about 2 months to get in place. There are then ongoing responsibilities to the court.  It is FAR better to have a POA, so YOU get to choose who will act, and so you can avoid probate, completely. It is not expensive to set this up.

Eric Smith · Answer

Without a durable power of attorney in place, if you are temporarily or permanently incapacitated, only a court-appointed guardian can make decisions on your behalf. While the court will generally look to your immediate family first to name a Guardian, there is no requirement they do so, and they may name any individual who is not disqualified. The entire Guardianship proceeding is relatively expensive and time consuming, so it is almost always the best practice to try to avoid it by naming a friend or family member you trust as power of attorney ahead of any need.

Leonard A. Kaanta · Answer

None of them of any right to act in your name without a power of attorney. The Probate Court will decide who will be your guardian and conservator.

Charles Stewart · Answer

Without a Power of Attorney, nobody would be able to make decisions for you. If bills need to be paid and your affairs need to be managed, your family will have to pursue a guardianship - an expensive and time-consuming prospect.  A proposed guardian would hire an attorney to petition the court for you to be appointed, interested persons would be notified, there would be a time period allowed for interested persons to answer, an attorney would be appointed to represent your interests, and finally there would be a hearing.  Or you could just execute a POA.

Michael Yeksavich · Answer

Depends upon the circumstances.  Why don't you avoid any problems and consult an  attorney about a power of attorney.

Maura Curran · Answer

The choice of who will be your Agent (the person to make decisions) is up to you when you create your Power of Attorney, or POA.  You can choose anyone you want, relative or not.  However, you need to be aware when you execute the POA of all the power you give to your Agent as the POA is a very powerful instrument.  It is highly recommended you consult an attorney before executing a POA.

Martin Chmielik · Answer

If you do not have a power of attorney, then a Guardianship will need to be set up through the probate court to have a Guardian appointed to make decisions for you if you should lose mental capacity to make decisions for yourself.  The court would give preference to your children to be Guardian, but if there are several that are "competing" to be appointed your Guardian, then the court with just make the decision based on who presents the best case for why they should be appointed, or why the other children should not be appointed (it can get nasty).

Michael Stafford · Answer

Upon your death the power of attorney terminates.  The person you appoint in your power of attorney will be the only person who can make decisions for you.  Upon your death you will need a Will to appoint a person to act on your behalf.

Edward Armstrong · Answer

Your children do not automatically become your attorney in fact under a power of attorney.  Depending on your mental state at the time you become disabled, you may or may not be able to designate one of them your attorney in fact.  If you were incapacitated (incompetent) to a significant degree one of your children 18 years of age or older would have to open up a guardianship and conservatorship in probate court and then would act on your behalf with court direction.  It would be best to have a power of attorney.  Remember, however, in order to be designated as your attorney in fact a child would have to be 18 years old or older.

Anthony Roach · Answer

If you are referring to who will make decisions after the death of the person that executed the power of attorney, then you should be made aware that a power of attorney automatically is revoked upon the grantor's death.  It sounds as if you are asking a question about estate planning.  I suggest speaking to an estate planning attorney, rather than doing it yourself.

William Spern · Answer

If you are unable to make decision, any of your children can go to court and petition to be appointed guardian and conservator for you. If you wish to name a specific person, prepare a general and medical power of attorney.

Frances Headley · Answer

If you have not designated an agent then the doctors would try and get a consensus among all of your relatives.  If they do not agree, then the doctors would be forced do everything possible to keep you alive regardless of cost or effect on your quality of life. A power of attorney would name an agent to speak for you and set out your wishes about the nature and extent of treatment.  You should consult an estate planning attorney to assist you.

Victor Waid · Answer

As long as you are alive, YOU make your descisions. Get a power of attorney and a Advance Care Medical Directive and designate at least one person you trust to make decisions for you when you no longer have the capacity to do so, or no longer desire to do so for yourself.

Austin Hirschhorn · Answer

If you do not have a power of attorney and something happens to you, someone would have to petition the court in the county where you reside for guardianship in the case of you being disabled or probate if you die without a will.  You should think about having a will prepared if you have children and want to provide for each of them separately.  If you were to die without a will the person who petitions for probate will suggest the person to be appointed to handle the estate.  If none of your children is over 18 you definitely should have a will prepared and designate the person you want to be the personal representative.  If you are hospitalized, most hospitals will require you to prepare and sign a health care directive that will indicate the go to person for medical treatment decisions.  If you have a trusted friend who is willing to carry out your wishes, you could designate that person to be your personal representative in your will.

Carmen Marquez · Answer

You need to designate someone to be your Agent in a Durable Power of Attorney.  No one can make decision for you if you become incapacitated.  If you don't have an agent someone would have to initiate a very expensive Conservatorship with the court and petition to be appointed as your Conservator in order to be able to make decisions for you but it would be court supervised and it might be someone you would have never elected.

Edward Olson · Answer

It is not clear, from your post, what "decision" you are referring to.      Medical decisions requre a Health Care Power of Attorney, legal and financial decisions require a regular Power of Attorney.  Upon your death, all powers of attorney become void.

Dera Johnsen-Tracy · Answer

If you do not have power of attorney documents in place for both finances and health care, and if you were to become mentally incapacitated, your loved ones would need to initiate a guardianship proceeding in court.  A judge would then decide who should be legally appointed to manage your finances, and who should be legally appointed to make health care decisions for you.  If you would like to avoid this court proceeding, and decide for yourself who should serve as your financial agent and health care agent, then you should make sure you have appropriate estate planning documents in place.

Grady Gauthier · Answer

The court will make decisions of who will be your conservator at moments/time of incapacity or will dispose of your estate for you unless you have initiated a power of attorney and a will accordingly.  I recommend you consult an attorney for estate planning and power of attorney matters.

John Brennan · Answer

You make the selection of who receives your power of attorney. It is a legal document.

Nathan Borris · Answer

Technically, nobody. Absent a power of attorney, a conservatorship action must be filed in order to appoint a conservator to make certain decisions for you.

Jayne Sebby · Answer

If you don't have a power of attorney for healthcare document and you are unable to make decisions for yourself, the medical providers will usually turn to whatever immediate family members are around and ask them to make the decisions. However, those present may have drastically different ideas about what is appropriate care and it is not uncommon for them to be unable to come to a consensus.  And those who aren't present may strongly object to treatment decisions made by those who are with you.  If you don't have a power of attorney for financial matters, it is unlikely that anyone, even family members, have the legal authority to act on your behalf.  At that point any interested party, including your creditors, can petition the court to have someone named as attorney-in-fact or conservator to handle your affairs.  It is in your best interest to have power of attorney documents drawn up so you can choose who will make these important decisions when you can't.  A living will is also highly recommended.

Edwin Fee · Answer

If you do not have a power of attorney, then it might be necessary for a court to appoint a guardian.  The children would have equal priority to serve as guardian.

Jane Wilson · Answer

You can designate the person of your choice.

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