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Power of Attorney
Technically:
If a married couple belongs to a club -- as individual
members -- and one has become incapacitated and is going to
withdraw, what do you recommend to do with regard to the
letter of withdrawal?

Can you assume the spouse has Power of Attorney? It seems
just a bit rude to ask for proof. Especially if the couple
is well known to everyone and we all know their situation.

Suggestions? (Or just don't worry about the rude part.)

(Assume also that the one spouse plans to continue in the
club, and will probably choose to reinvest the incapacitated
spouse's funds in his name.)
Linda:

The situation you describe has several components.
First, when you say "incapacitated" do you mean physically
or mentally? Can the person articulate their desire to
withdraw, but not sign a document; or mentally can not
express the intent?
Second, you say married couple, but as individual members.
If you located in a community property state, all of the
units are community property unless the funds used to
purchase units in the partnership were sole and separate
property. As community property, each spouse owns an
undivided half interest in those units, and either spouse
can act as the manager on behalf of the marital community.
There may be laws in non-community property states that
provide similar provisions.
Third, what are the surrounding circumstances, e.g. age of
folks, amount of money involved, any creditors, medical or
state benefit programs involved? Is the situation going to
turn into an Estate situation soon? My usual question is
"who is in a position to complain or question the
transaction?

If you know there is a Power of Attorney, then all of the
above analysis can be avoided by just asking for a copy.

Jack Ranby
thanks, Jack.
Yes, we are in a community property state. Still --

Mentally incapacitated -- Now living in a memory care unit.

IMO, we just need to ask for the letter as a matter of course, not as if we were questioning it. We're not. Just want to CYA.


Linda





On Mon, Mar 30, 2020 at 4:34 PM John W Ranby Trustee PGM Cariboo Trust via bivio.com <user*15792700001@bivio.com> wrote:
Linda:

The situation you describe has several components.
First, when you say "incapacitated" do you mean physically
or mentally? Can the person articulate their desire to
withdraw, but not sign a document; or mentally can not
express the intent?
Second, you say married couple, but as individual members.
If you located in a community property state, all of the
units are community property unless the funds used to
purchase units in the partnership were sole and separate
property. As community property, each spouse owns an
undivided half interest in those units, and either spouse
can act as the manager on behalf of the marital community.
There may be laws in non-community property states that
provide similar provisions.
Third, what are the surrounding circumstances, e.g. age of
folks, amount of money involved, any creditors, medical or
state benefit programs involved? Is the situation going to
turn into an Estate situation soon? My usual question is
"who is in a position to complain or question the
transaction?

If you know there is a Power of Attorney, then all of the
above analysis can be avoided by just asking for a copy.

Jack Ranby
First, what does your partnership agreement say? If the partnership agreement is silent and the non-disabled partner has been given a durable power of attorney or been legally designated as guardian ad litem the problem is solved. If not, it would most likely be in the parties' best interests to obtain guardianship. You probably should be very reluctant to do anything unless there is legal authority to do so. You would be amazed at where legal challenges may come from. I once mediated a multi-party family dispute over who was to pay the decedent's funeral expenses. Ironically, the courthouse where the mediation was held was named for the decedent, a retired judge.

On Mon, Mar 30, 2020 at 8:25 PM Linda Glein via bivio.com <user*21345500001@bivio.com> wrote:
thanks, Jack.
Yes, we are in a community property state. Still --

Mentally incapacitated -- Now living in a memory care unit.

IMO, we just need to ask for the letter as a matter of course, not as if we were questioning it. We're not. Just want to CYA.


Linda





On Mon, Mar 30, 2020 at 4:34 PM John W Ranby Trustee PGM Cariboo Trust via bivio.com <user*15792700001@bivio.com> wrote:
Linda:

The situation you describe has several components.
First, when you say "incapacitated" do you mean physically
or mentally? Can the person articulate their desire to
withdraw, but not sign a document; or mentally can not
express the intent?
Second, you say married couple, but as individual members.
If you located in a community property state, all of the
units are community property unless the funds used to
purchase units in the partnership were sole and separate
property. As community property, each spouse owns an
undivided half interest in those units, and either spouse
can act as the manager on behalf of the marital community.
There may be laws in non-community property states that
provide similar provisions.
Third, what are the surrounding circumstances, e.g. age of
folks, amount of money involved, any creditors, medical or
state benefit programs involved? Is the situation going to
turn into an Estate situation soon? My usual question is
"who is in a position to complain or question the
transaction?

If you know there is a Power of Attorney, then all of the
above analysis can be avoided by just asking for a copy.

Jack Ranby
I agree that it is often surprising, and dismaying, where legal challenges come from. In our case it is highly unlikely there will be any difficulty, but I asked the question not only for our own information, but to generate discussion and thought for others about Best Practices.

In our particular case, this is a long-term marriage and what appears to be a very amicable family. Nevertheless, it is better to be safe than sorry.

Linda Glein
Volunteer
Puget Sound Chapter






On Mon, Mar 30, 2020 at 8:57 PM Stuart Lange via bivio.com <user*25028600001@bivio.com> wrote:
First, what does your partnership agreement say? If the partnership agreement is silent and the non-disabled partner has been given a durable power of attorney or been legally designated as guardian ad litem the problem is solved. If not, it would most likely be in the parties' best interests to obtain guardianship. You probably should be very reluctant to do anything unless there is legal authority to do so. You would be amazed at where legal challenges may come from. I once mediated a multi-party family dispute over who was to pay the decedent's funeral expenses. Ironically, the courthouse where the mediation was held was named for the decedent, a retired judge.

On Mon, Mar 30, 2020 at 8:25 PM Linda Glein via bivio.com <user*21345500001@bivio.com> wrote:
thanks, Jack.
Yes, we are in a community property state. Still --

Mentally incapacitated -- Now living in a memory care unit.

IMO, we just need to ask for the letter as a matter of course, not as if we were questioning it. We're not. Just want to CYA.


Linda





On Mon, Mar 30, 2020 at 4:34 PM John W Ranby Trustee PGM Cariboo Trust via bivio.com <user*15792700001@bivio.com> wrote:
Linda:

The situation you describe has several components.
First, when you say "incapacitated" do you mean physically
or mentally? Can the person articulate their desire to
withdraw, but not sign a document; or mentally can not
express the intent?
Second, you say married couple, but as individual members.
If you located in a community property state, all of the
units are community property unless the funds used to
purchase units in the partnership were sole and separate
property. As community property, each spouse owns an
undivided half interest in those units, and either spouse
can act as the manager on behalf of the marital community.
There may be laws in non-community property states that
provide similar provisions.
Third, what are the surrounding circumstances, e.g. age of
folks, amount of money involved, any creditors, medical or
state benefit programs involved? Is the situation going to
turn into an Estate situation soon? My usual question is
"who is in a position to complain or question the
transaction?

If you know there is a Power of Attorney, then all of the
above analysis can be avoided by just asking for a copy.

Jack Ranby