Question: My third husband and I have been together for 22 years. He has three grown children and five grandchildren from his first marriage. I have one living child and two grandchildren. He and I both want our respective bloodlines to receive the bulk of the property we brought into the marriage, and that’s where we have been having difficulties. When we married, we both owned homes; he sold his and moved into mine. We did not do a premarital agreement.

We use a joint checking account to pay the bills that we split equally. He owns all of his property in his name, and I own mine. If I die first, he wants to be able to live in my house without cost until he dies. I am not worried about our wills because we can just leave everything to our children and leave each other nothing, but we have had a lot of disagreements about what will happen if one of us becomes incompetent and can’t handle business affairs any more. He says he will sign a power of attorney to let me handle his money if I will do the same. I have refused, and he has been moping around saying I don’t trust him.

We are both in our 70’s, and I have not kept my finances separate for 22 years to see him let his children talk him into taking advantage of me if I am “out of it”, and leaving my son and grandchildren out. We talked to a lawyer about how to keep control, but he could not come up with anything that suited me.

Answer: If you are comfortable with your wills, then you do not understand the basic premise that the law protects one spouse from simply being “left out” by the other without knowledgeable waivers signed by both after full financial disclosure. Without valid waivers, either of you can make a claim against the other’s estate for a share.

While you and your husband can voluntarily relinquish your rights to each other’s estate, there is still the question about his use of your house if you die before him. If you are going to authorize this, and if your will leaves him a life estate, he has the right to live there until he dies and, under the laws of some states, he could force the sale of the house by partition and get money for his incremental share.

A better tack may be to place your home in a trust at the time of your death that provides for your husband’s occupancy so long as he pays the taxes, insurance, and upkeep and does not remarry, cohabit with another woman, or leave for more than 60 days. In this way, your trustee will have the opportunity to regain possession of the residence should your husband not comply with the contingencies. You and your husband could consider reciprocal wills, which can be a good method of ensuring your desires are followed.

Because no one can predict the future when it comes to either death or incapacity, durable powers of attorney (that is, powers of attorney that continue past the incapacity of the person who signs the same) generally provide that the appointed agent – called a proxy or attorney in fact – will have rather broad authority in order to be able to deal with unexpected financial events. However, giving broad authority can often carry with it the ability of the agent to abuse the authority. Therefore, right off the bat, there is a conflict between a person’s desire to give sufficiently broad authority to the agent, on the one hand, and to control the acts of the proxy on the other.

Since you obviously feel uncomfortable (and we can’t say that we blame you), you should consider either (a) appointing each other and creating lots of safeguards that, in the long run, may interfere with the activities that need to be accomplished, or (b) appointing a non-relative or corporate fiduciary as agent.

Either way, if you inject too many safeguards, your proxy may find it too difficult to act and quit. And, just as importantly, banks and other third parties may refuse to deal with your proxy because you have made the situation too difficult.

Custom-drafted durable powers of attorney come in all shapes and sizes, and there is one out there that will satisfy you. For example, you might consider using “springing durable powers of attorney,” which do not become effective until you become incapacitated; however, after incapacity, many of the same problems can still exist. On the other hand, some people appoint two or more agents who can act only if all agree; however, if your agents can’t agree, then no one can act -- still another problem.

Or, you could give a third person, such as an accountant, the right to audit the actions of the agent and, if warranted, to revoke the power of attorney. You could also consider placing a transaction limit -- say $10,000 – on activities without the proxy first getting permission from a third person to act. Or, you can split responsibilities among a number of proxies so no one proxy has all of the authority, another administrative nightmare.

Bottom Line: All of potential solutions have drawbacks: What if the third person you choose as a monitor or auditor is unavailable, dies, or becomes incompetent? What if the bank or the person who wants to buy the property is not satisfied with who has the authority? Since a proxy under a power of attorney is a fiduciary, most courts have the power to require accountings; however, if you leave these matters to the courts, then there is no real sense in having a power of attorney, since what you are doing is, in effect, using a guardianship or conservatorship that is handled through the court.

No matter how you cut it, unless you trust your agent, planning will be an expensive waste of time.