Who Decides When No One Has Been Named?
If I woke up tomorrow and could not decide things, who would the bank call?
Picture a couple named Reuben, 74, and Hannah, 72. They retired to a city that is not the one they grew up in. They have a will at home in the United States. They have no power of attorney and no health care proxy. They keep meaning to see someone about it.
One afternoon Hannah asked, "If I woke up tomorrow and could not decide things, who would the bank call?"
"Our son, I suppose," Reuben said. "He is in Denver."
"Does the bank know that?"
Reuben looked at the ceiling. "I do not know who they would call."
Earlier pieces on this site looked at the papers to sign while the mind is clear. This one looks at the other side. It asks what happens to the people who love us when nothing has been signed.
Nobody is at fault when the papers are missing. Most of us mean to sign them. Reuben and Hannah made a list of the people who might be asked to decide, and wrote a question next to each one.
| Who may be asked | What they may face | A question for a local lawyer |
|---|---|---|
| A spouse | A bank or clinic may want a paper before it speaks to anyone | What does this country ask of a spouse when no one has been named? |
| An adult child far away | Travel, and a process in a language and a legal system that are new to them | Could a child living abroad start the process, and where? |
| A friend or neighbor | Often the first at the door, and sometimes with no formal role | Is there any informal role a friend could hold? |
Public sources describe a few doors. In Spain, a long-standing arrangement called guarda de hecho lets a relative or close person who is already looking after someone go on doing so informally. As the 2021 law reads, acting for the person in a legal sense then needs a court's authorization. In Mexico, one law professor's column describes a deed before a notary, in which a person names in advance who will care for him and manage his property. The same column describes the court route as slow and costly, with two psychiatrists. In Colombia, a 2019 law sets up support agreements signed before a notary or at a conciliation center, and a court can also assign supports. In the United States, the Alzheimer's Association says a court may appoint a guardian or conservator, that it takes time and an attorney, and that the rules vary by state.
What any of these countries would do for a foreign resident is a question for a local lawyer. So these are questions to carry to one.
Reuben put the page in his shirt pocket. "Tuesday," he said. Hannah took it out and wrote the date at the top.
You could…
-
Write down who you would want to decide for you, and ask each person if they are willing.
-
Ask a local lawyer or notary what happens in this country when no one has been named, and whether it differs for a foreign resident.
-
Tell your doctor and your bank who your contact person is, and ask whether they can note it.
Who would get the first phone call if something happened to you? Share it here. Someone reading may find the name they thought of has never been told.
Figures are estimates for planning, based on public data. Sources: Spain, Ley 8/2021; a column by a UNAM law professor on Mexico City's Civil Code; Colombia, Ley 1996 de 2019; Alzheimer's Association, Legal Documents. This is general information. A lawyer or notary in your country could confirm it for your case.
Tell us in the comments