If you do not have a power of attorney, who is the person that will make your decisions for you? 54 Answers as of August 17, 2012

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.

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Barlow Flake LLP
Barlow Flake LLP | Jonathan W. Barlow
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.
Answer Applies to: Nevada
Replied: 8/17/2012
Law Office of George M. Derieg
Law Office of George M. Derieg | George Derieg
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.
Answer Applies to: California
Replied: 8/13/2012
Halloran & Sage | Vincent A. Liberti
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.
Answer Applies to: Connecticut
Replied: 8/13/2012
Goldsmith & Guymon
Goldsmith & Guymon | Dara Goldsmith
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.
Answer Applies to: Nevada
Replied: 8/8/2012
Geoff Germane, Attorney at Law | Geoff Germane
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.
Answer Applies to: Utah
Replied: 8/8/2012
    Law Office of Robert J. Slotkin | Robert J. Slotkin
    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.
    Answer Applies to: Florida
    Replied: 8/7/2012
    Harkess Law Offices | Nancy Harkess
    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.
    Answer Applies to: Nevada
    Replied: 8/7/2012
    Law Office of Charles M. Vacca Jr. | Charles Martin Vacca Jr.
    Admittedly your question does not make much sense. A power of attorney pertains to an individual conveying the decision-making power(s) are that person to another individual. Children usually cannot make decisions regarding themselves if they are less than 18 years old.
    Answer Applies to: Rhode Island
    Replied: 8/7/2012
    O'Keefe Legal Services, L.L.C.
    O'Keefe Legal Services, L.L.C. | Sean P. O'Keefe
    What kind of "decisions" are you considering? Without a power of attorney to name an agent for personal, financial, etc. action, or advance directive to name an agent for health care action, or court order naming a guardian or custodian, it is unlikely someone else may make those kinds of decisions on your behalf. In the scenario you describe, someone would need to petition the circuit court to become your legal guardian. In Maryland, without a power of attorney naming your agent ("attorney-in-fact"), you will likely need a court order to appoint a guardian for someone to have authority to make decisions on your behalf. Depending on your specific goals, there may be alternate ways to accomplish them, such as holding property jointly or authorizing an agent with the applicable third party. In the Estates and Trusts Article of the Maryland Code, your children may have guardianship priority over some other classifications of people, but depending on your specific facts the children do not necessarily have the highest priority, and there may not be a priority among the children.
    Answer Applies to: Maryland
    Replied: 8/7/2012
    Victor Varga | Victor Varga
    What type of decisions? Financial and/or health related? Why not just have a power of attorney for both executed now so you don?t have to worry about it? Otherwise some, one, or none of your children may be able to make decisions, depending on who they are dealing with and what they are dealing with.
    Answer Applies to: Maryland
    Replied: 8/7/2012
    James T. Weiner & Associates, P.C.
    James T. Weiner & Associates, P.C. | James T. Weiner
    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.
    Answer Applies to: Michigan
    Replied: 8/7/2012
    Candace K Ladley, Attorney | Candace Kay Ladley
    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.
    Answer Applies to: California
    Replied: 8/7/2012
    THE BROOME LAW FIRM, LLC
    THE BROOME LAW FIRM, LLC | Barry D. Broome
    A Power of Attorney is written authorization given by you to someone you trust to act in your name. It can be a General or Limited power. You are the only one who can give this authority. If you are not competent to give this power then a court can appoint someone. Most of the time the person appointed is a relative but the court can appoint someone who is not a relative. You can also appoint someone who is not a relative. I recommend that you have an attorney draft this document after you discuss all your issues with him or her.
    Answer Applies to: Georgia
    Replied: 8/7/2012
    Alvin Lundgren | Alvin Lundgren
    You should get the proper legal documents, so you can choose who is making decisions.
    Answer Applies to: Utah
    Replied: 8/7/2012
    Atlas and Hudon, LLP | Douglas Mackubin Thomas
    In Connecticut, if you are unable to conduct your own business and personal affairs (i.e., unable to meet essential requirements for their physical health or safety and/or unable to make informed decisions about matters related to their care), the probate court can appoint someone (a "guardian" and/or "conservator") to do so on your behalf. The person might be a family member, a friend or an attorney. On the plus side, the probate court will attempt to oversee the actions of guardians and conservators to assure that they act in your best interest. On the negative side, the process takes time, has costs associated with it and the individual(s) identified may not be the person(s) you would have picked. To make sure that your business and personal affairs are handled by a particular trusted family member or friend, you need to execute a durable power of attorney while you are competent to do so. Similarly, you should consider executing a form which identifies both a health care representative to act on your behalf and your health care directives (people often refer to this form as a "living will"). The Connecticut Probate Court System has a website which answers frequently asked questions about guardians and conservators and related topics. It is very helpful (go to hotlink: http://www.jud.ct.gov/probate/faq.html). If you have additional questions, consider contacting an attorney who handles probate matters.
    Answer Applies to: Connecticut
    Replied: 8/7/2012
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    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.
    Answer Applies to: Oregon
    Replied: 8/7/2012
    Gates' Law, PLLC | Thomas E. Gates
    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.
    Answer Applies to: Washington
    Replied: 8/6/2012
    Hunter Law Offices, PLLC
    Hunter Law Offices, PLLC | S. Christopher Hunter
    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.
    Answer Applies to: Michigan
    Replied: 8/6/2012
    Frederick & Frederick PLC | James P Frederick
    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.
    Answer Applies to: Michigan
    Replied: 8/6/2012
    The Law Office of Eric J Smith
    The Law Office of Eric J Smith | Eric Smith
    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.
    Answer Applies to: Texas
    Replied: 8/6/2012
    Leonard A. Kaanta, P.C. | Leonard A. Kaanta
    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.
    Answer Applies to: Michigan
    Replied: 8/3/2012
    Law Office of Charles R. Stewart. LLC
    Law Office of Charles R. Stewart. LLC | Charles R. Stewart
    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.
    Answer Applies to: Maryland
    Replied: 8/3/2012
    Mike Yeksavich | Mike Yeksavich
    Depends upon the circumstances. Why don't you avoid any problems and consult an attorney about a power of attorney.
    Answer Applies to: Oklahoma
    Replied: 8/3/2012
    The Curran Law Firm
    The Curran Law Firm | Maura Curran
    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.
    Answer Applies to: Florida
    Replied: 8/3/2012
    Chmielik Law Firm, LLC
    Chmielik Law Firm, LLC | Martin Chmielik
    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).
    Answer Applies to: Missouri
    Replied: 8/3/2012
    Law Offices of Michael N. Stafford | Michael N. Stafford
    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.
    Answer Applies to: California
    Replied: 8/3/2012
    The Law Offices of Laurie E. Ohall, P.A.
    The Law Offices of Laurie E. Ohall, P.A. | Laurie E. Ohall
    If you do not have a power of attorney, no one will be able to make legal decisions for you, access your bank accounts to pay bills, etc., without a guardianship being established. The exception being if you have your kids listed on your bank accounts with you, they would be considered joint owners and would be able to access the accounts. No one has the right to make legal decisions for you or health care decisions unless you appoint them to be your agent or health care surrogate (that includes a spouse). If you do not appoint someone via a durable power of attorney or health care designation, and you become incapacitated, someone will have to file a petition with the courts to have you declared incapacitated and be appointed your legal guardian. This can be a very expensive process and requires the use of an attorney.
    Answer Applies to: Florida
    Replied: 8/3/2012
    Edward L. Armstrong, P.C. | Edward L. Armstrong
    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.
    Answer Applies to: Missouri
    Replied: 8/3/2012
    Law Office of Anthony Roach | Anthony Allen Roach
    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.
    Answer Applies to: California
    Replied: 8/3/2012
    DEAN T. JENNINGS, P.C.
    DEAN T. JENNINGS, P.C. | Dean T Jennings
    You need to get a power of attorney ASAP. They would have to go to Court and get a Conservator appointed to handle you business.
    Answer Applies to: Iowa
    Replied: 8/3/2012
    Law Office of William L Spern | William Spern
    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.
    Answer Applies to: Michigan
    Replied: 8/3/2012
    Austin Hirschhorn, P.C.
    Austin Hirschhorn, P.C. | Austin Hirschhorn
    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.
    Answer Applies to: Michigan
    Replied: 8/3/2012
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    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.
    Answer Applies to: California
    Replied: 8/3/2012
    Law Offices of Frances Headley | Frances Headley
    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.
    Answer Applies to: California
    Replied: 8/3/2012
    Martin Barnes - Attorney at Law
    Martin Barnes - Attorney at Law | Martin Barnes
    You cannot rely upon the ability of any of your children to represent your interests unless they have been vested with legal authority to do so. For example, a properly prepared and signed Power of Attorney (in Indiana it must be notarized as well) can provide them with the authority to represent you. I recommend you visit with an Attorney who can help you understand the issues and prepare the documents necessary to enable the person or persons of your choice to act as your representative in those cases where you will need them.
    Answer Applies to: Indiana
    Replied: 8/3/2012
    Carmen B. Marquez, PC | Carmen B. Marquez
    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.
    Answer Applies to: California
    Replied: 8/3/2012
    Olson Law Firm | Edward M Olson
    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.
    Answer Applies to: Michigan
    Replied: 8/3/2012
    Horn & Johnsen SC
    Horn & Johnsen SC | Dera L. Johnsen-Tracy
    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.
    Answer Applies to: Wisconsin
    Replied: 8/3/2012
    WARM SPRINGS LAW GROUP | Elliott D. Yug
    It will be a fight and messy. A guardianship will be needed. Best bet is to do a Durable Power of Attorney for Health Care Decisions. That way you decide who makes the decisions and you say what those decisions will be. Otherwise it will be ugly, messy and expensive. I have seen it happen before too many times.
    Answer Applies to: Nevada
    Replied: 8/3/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    You make the selection of who receives your power of attorney. It is a legal document.
    Answer Applies to: Michigan
    Replied: 8/3/2012
    Law Office of Grady G Gauthier | Grady G Gauthier
    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.
    Answer Applies to: California
    Replied: 8/3/2012
    The Law Office of Nathan D. Borris, Esq.
    The Law Office of Nathan D. Borris, Esq. | Nathan D. Borris
    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.
    Answer Applies to: California
    Replied: 8/3/2012
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    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.
    Answer Applies to: Nebraska
    Replied: 8/3/2012
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    Only you until you sign a Power Of Attorney authorizing someone else to act if needed. If there is no Power Of Attorney, then no one has the ability to act on your behalf just because they are related to you. If you cannot act for yourself, then a conservatorship would have to be put in place through the Courts.
    Answer Applies to: California
    Replied: 8/3/2012
    Timiney Law Firm
    Timiney Law Firm | Leigh Anne Timiney
    If you do not have a power of attorney or a will, the state will determine who makes decisions on your behalf and who will take ownership of your property in the event of your passing. Not only is this not good for you, it is a difficult process for your family members. It is a simple process to develop a will and a power of attorney. This way you can choose who makes decisions for you and you can also choose what happens to your property. I suggest you contact an estate attorney and have these documents completed for you. This way you won't have to worry and you will be in control of what happens if you ever cannot make choices or decisions for yourself.
    Answer Applies to: Arizona
    Replied: 8/3/2012
    Slovak Baron & Empey, LLP | Valerie A. Powers Smith, Esq.
    Without a legal document, a durable power of attorney for general and financial decision making or health care directive for medical decision making, many entities will not recognize anyone as having power to act on your behalf. Children are the natural objects to seek guidance from; but, simply being a child of yours does not imbue legal authority to act on your behalf with financial institutions, manage and pay your bills, buy or sell property or assets, or make medical decisions or access records for you.
    Answer Applies to: California
    Replied: 8/3/2012
    Law offices of Ron Webster | Ronald S. Webster
    Without a power of attorney in play if you become incapacitated there will be no one in charge. The court will have to establish a guardian on your behalf.
    Answer Applies to: Florida
    Replied: 8/3/2012
    Jane Phillipson Wilson, Attorney at Law
    Jane Phillipson Wilson, Attorney at Law | Jane Phillipson Wilson
    You can designate the person of your choice.
    Answer Applies to: Michigan
    Replied: 8/3/2012
    Della Rocca Law, LLC | Brian R. Della Rocca
    If you do not have a power of attorney designating someone to handle your finances, it is likely a person will have to go to the expense of filing for guardianship over your property. I recommend you speak to an estate planning attorney to discuss your needs. In the end, it is less expensive getting a financial power of attorney instead of forcing your loved ones to file for guardianship.
    Answer Applies to: Maryland
    Replied: 7/31/2012
    Whiteford, Taylor, & Preston | Edwin Fee
    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.
    Answer Applies to: Maryland
    Replied: 8/3/2012
    Law Office of Matt Potempa, PLLC
    Law Office of Matt Potempa, PLLC | Matt Potempa
    If no one is available to make decisions in an emergency situation, your children, or next of kin, would presumably be able to make decisions. You should consult with an experienced estate planning attorney to draft and execute a financial and healthcare power of attorney.
    Answer Applies to: Tennessee
    Replied: 8/3/2012
    Martinson & Beason, PC
    Martinson & Beason, PC | Douglas C Martinson II
    You should execute a Power of Attorney naming which of your children you want to be in charge of your affairs. If you don't, then they court will have to appoint one which will be much more expensive than a Power of Attorney.
    Answer Applies to: Alabama
    Replied: 8/3/2012
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