Q: Can I take a withdrawal slip from credit union to incapacitated spouse to have signed so I can get money?
How do I go about getting money from my husbands account as an emergency? Someone said I can take a withdraw form and have him sign it and put thumbprint in front of witnesses. Is this true?
A:
A person may act for an incapacitated person either as a guardian or conservator by virtue of a court order, a court appointed guardian ad litem, or pursuant to a durable power of attorney. The durable power of attorney must be signed by the principal before becoming incapacitated or during a period of lucidity (which should probably be witnessed by an attending physician if the principal is passing in and out of lucidity).
A spouse does not have an inherent right to withdraw money from his or her spouse's individual account, or sign his or her spouse's signature, simply by virtue of the marriage, without a power of attorney.
The signature of a person who lacks the capacity to contract is worthless, as the signature requirement exists to evidence the person's consent to some legal act, which consent cannot exist in the absence of an understanding of the nature and consequences of one's actions.
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