Frequently Asked Questions (FAQs)
Can I set up a power of attorney if my parent already has dementia?
The ability to create a power of attorney hinges entirely on the legal concept of capacity. To sign a binding legal document, an individual must possess the mental capacity to understand what the document is, what powers it grants, and the consequences of signing it. If a parent is in the very early stages of dementia and has lucid days where they fully grasp these concepts, an attorney may determine they still have the required capacity to execute the documents. However, if the dementia has progressed to the point where they are consistently disoriented or unable to understand financial concepts, it is too late. In that scenario, you must petition the local court to be appointed as their legal guardian or conservator.
Does having a will mean my family can avoid the probate process?
This is a widespread and very common misconception. A will does not avoid probate; in fact, a will is essentially a set of instructions written directly to the probate court judge. When someone dies with a will, the document must be submitted to the court, authenticated, and formally executed through the probate process. If avoiding probate is your primary goal—usually to save time, reduce legal fees, and maintain family privacy—you need to utilize alternative tools, such as a revocable living trust, payable-on-death bank accounts, and direct beneficiary designations.
How often should we review and update these legal documents?
As a general rule, legal documents should be thoroughly reviewed every three to five years. However, you must also update them immediately following any major life event within the family. These triggering events include marriages, divorces, the birth or adoption of a new child, the death of a named executor or beneficiary, a significant change in financial status, or a move to a different state. Moving to a new state is particularly critical because probate and estate laws vary drastically across different jurisdictions, and a document perfectly valid in one state may face scrutiny in another.
What if my parent absolutely refuses to discuss these matters?
Resistance is a natural reaction to topics involving mortality and loss of independence. If your parent shuts down the conversation, do not force the issue into an argument. Instead, retreat and try a different approach later. Sometimes, parents are more receptive to hearing this advice from a neutral, authoritative third party rather than their own child. Consider enlisting their long-time accountant, a trusted religious leader, or their primary care physician to gently suggest that they get their affairs in order. Emphasize that acting now allows them to maintain absolute control over their decisions, whereas doing nothing guarantees that strangers and judges will make decisions for them.
Who makes the best executor for an estate?
The ideal executor is someone highly organized, financially responsible, emotionally resilient, and capable of communicating effectively with multiple family members. They do not need to be a financial genius, as a good executor will hire professionals—like CPAs and attorneys—to assist with the complex tasks. While parents typically name their oldest child by default, this is not always the best choice. If the oldest child lives across the country, has a chaotic personal life, or has a combative relationship with their siblings, naming them will likely cause extreme delays and family friction. In highly contentious family situations, it is often best to name a neutral corporate trustee or a professional fiduciary to manage the distribution impartially.
For official information, consult government resources like USA.gov, the Consumer Financial Protection Bureau (CFPB), and the Federal Trade Commission (FTC).
For tax-related topics, refer to the IRS. For information on Social Security, visit the Social Security Administration.
Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information. Readers of this website should contact their attorney to obtain advice with respect to any particular legal matter.
