Q. My parents have been married for 50 years, unhappily for the past 20 years. Back then, my mother started having an affair that continues today. My father knows, neither wants to divorce and they keep their finances separate. They used the same attorney for their estate plans, but the attorney doesn’t know about their “arrangement.” My mother has moderate dementia, and now her “friend” manages her online portfolio. Although my father has power of attorney for my mother and knows my mother’s declining mental status, he will not declare my mother legally incompetent. Should I tell the attorney?
A. This is certainly a sticky situation.
You said your father has a power of attorney for your mother.
A power of attorney is a written document by which an individual (the principal) grants the authority to one or more other individuals (the agent or attorney-in-fact) to perform specified acts on behalf of the principal, generally dealing with the principal’s property or finances, whether or not the principal is under a disability, said Catherine Romania, an estate planning attorney with Witman Stadtmauer in Florham Park.
She said a properly prepared power of attorney will generally avoid the necessity of a guardianship proceeding should the principal become disabled, including as a result of dementia.
“In order to utilize a power of attorney to access online accounts, the document must specifically refer to the authority over digital assets and/or online financial accounts,” Romania said. “Financial institutions with online access to accounts may also have Terms of Service Agreements or online tools which allow account holders to designate third-party users or authorized representatives to act in the event of his or her disability or death.”
It’s not clear whether your mom has given her “friend” the actual authority to manage her online investments through Terms of Service Agreements, or merely tacit approval, Romania said.
If you plan to get more involved without your mother’s or father’s knowledge, this whole thing may not go the way you hope. And if your father doesn’t want to use the power of attorney to step in, you don’t have many options.
You also didn’t indicate if this arrangement concerns your father like it concerns you. It’s possible they have discussed the arrangement in greater detail than you know. You might feel better after talking to your father some more – if he’s willing to share.
Also consider sitting down with your mother when she’s able to have the conversation and take it from there.
Email your questions to moc.p1550323593leHye1550323593noMJN1550323593@ksA1550323593.