Dallas, TX asked in Family Law and Elder Law for Texas

Q: If my wife needs long term memory care, can I use her non-joint ira to help pay for it without a power of attorney?

She has Parkinson dementia and is no longer able to make decisions. For long term care I need to use the money in her IRA. Most of the money was made after we were married, but it is not a joint IRA. I have been managing the account since her illness, but have not taken out any money. Now that she has progressed to needing to be in a memory care facility. I need the money to help pay for her care. Can I access it and transfer money out to provide care or do I have to get official guardianship? We do not have a power of attorney and she is not competent enough to sign one at this point.

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2 Lawyer Answers
Randy Bryan Ligh
Randy Bryan Ligh
Answered

A: Sorry for the situation you are in. If it is not yours, then unless you have the right to access it, then you should not access it. I would seek judicial approval so no one can question you after the fact. Good luck.

Isaac Shutt
Isaac Shutt
Answered
  • Elder Law Lawyer
  • Richardson, TX
  • Licensed in Texas

A: You'll definitely want to speak with an attorney in the area who handles guardianship cases. In addition to (or instead of) guardianship over your wife, you may want to look at getting a document from the guardianship judge naming you as "community administrator". Many attorneys don't know about community administration, but it is way better than guardianship because it costs a lot less and requires a lot less reporting to the court in the future.

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