Legal Question in Real Estate Law in California
Hello,
First of all, I'm Spanish and I'm not familiar with US legal matters. My question is about a friend, US citizen, whose father, 81, has been seriously ill since Chirtsmas, in fact morphine is being administered to him. My friend lives far away (Northern Marianas) from his father, who lives in Orange County, Ca, and so does my friend's sister, who lives in Seattle. They want to move their father to an assisted home in Seattle when he recovers, but to do that they need to gain access to their father's bank accounts, sell his house and his car. Their father's financial situation is not very good and nor is my friend's. It seems they need the so-called power of attorney, but my friend has just told me they might not be granted such document due to his father's condition. Is he right? Is the power of attorney the only way to deal with the problem? I'd be thankful for any kind of information. Also, my friend's father is a Korean War Veteran, but he's not enjoying the benefit he's entitled to. They're going to apply for it but it seems it will take about 6 months to start getting it. Is this so? Will he receive benefits prior to the date of application? My friend is travelling to Ca in a couple of hours, but he feels he may not be able to help in any sense. Again, any kind of info would be useful. My friend is really stressed and having a terrible time. This is also generating a lot of tension between him and his sister. Thanks in advance. Sorry, I don't really know which area of law to choose down here!
4 Answers from Attorneys
I would suggest re-posting this question in the estate planning and probate section of this site. Your friends probably need to establish a conservatorship for the father if he is not able to handle his legal and personal affairs. A power of attorney is not the way to handle this, especially as it requires the father's consent, and if he is that ill and on morphine, he probably cannot legally give his consent to anything. As for the benefits, again, the same attorney handling the conservatorship can probably assist you with this. Yes, obtaining benefits can take a very long time.
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Mr. Gibbs is correct. A power of attorney given by a person on morphine would not be valid. A person that ill needs to have a conservator appointed. In this case it sounds like the sister is the most appropriate person to be the conservator. The conservatorship would have to be established in Orange County, so you should contact local counsel in that county.
IF the man is under sufficient sedation and treatment to make him 'incompetent' to take care of his own affairs, then he can't issue a valid power of attorney. Talk to his doctors to get their opinion, and see if they can help by reducing medication to allow him to give proper informed consent and sign a Power of Attorney, with witnesses present and signing as to his mental status. IF that can be done, it will avoid the need to file a Conservatorship or Guardianship in court to get authority to deal with his assets. If serious about hiring legal counsel to help in this, feel free to contact me, as I practice in Orange County.
I tend to agree with Mr. Nelson......morphine used for pain relief does not necessarily render the patient legally incompetent at all times. If the sedation can be interrupted sufficiently to permit clear thought, and the doctors approve, a power of attorney could perhaps be obtained, and the costly and complicated business of setting up and administering a conservatorship could be avoided.
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