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Power of Attorney
Power of Attorney is a document that allows one person to act in legal matters for another. This can include turning on utilities, making medical decisions, and many other permissions.
876 Questions
Are both medical power of attorney and durable power of attorney both necessary?
A Medical Power of Attorney is for medical purposes only. It allows a competent adult to choose someone who can make medical decisions for them if they should become unable to make those decisions on their own behalf. The principal can choose to be specific as to what treatment the principal does and does not want, or, can leave those decisions up to the Medical Attorney-in-Fact. The Medical AIF will have the authority to sign documents when a physician has deemed the principal to be incompetent.
A Durable Power of Attorney is another type of authority whereby a principal grants the power to act on their behalf to access bank accounts, pay bills, or sign any legal documents on behalf of the principal. Authority over medical treatment can also be granted with a Durable POA.
There are various schemes that could be chosen. You could have the same person(s) serving in both capacities or name two separate agents. Since the powers under a Durable POA may overlap with those under a Medical POA the principal must decide who will have the authority over medical matters and make instructions to that effect clear in the two POAs IF two separate individuals will be chosen.
You should seek the advice of an attorney who can review your situation, explain your options under your state laws and draft instruments that meet your needs.
Can an Executor who has Power of Attorney take money out of the Estate before the estate owner dies?
The terms you used in your question are used incorrectly. A person cannot be an attorney-in-fact under a POA and an executor at the same time. A power of attorney serves a living person. There is no executor appointed until the testator dies.
A POA gives an attorney-infact the authority to act on behalf of a living person (the principal). An attorney-in-fact is prohibited by law from transferring the assets of the principal to their own use. When the principal dies the power of attorney is extinguished and an estate representative must be appointed. An executor is appointed by the court if the decedent left a Will. A person isn't an executor until the will has been allowed by the probate court and the court has appointed the executor.
You need to consult with an attorney ASAP who can review your situation and explain your options. You may need to sue the AIF.
Who can be your power of attorney?
Anyone over the age of majority (18 in most US states) can issue a Power of Attorney. There are two basic types of POA - a Specific POA to permit another indidvidual to perform a specific act for you, or a General POA which should spell our all of the actions authorized.
How long does a power of attorney remain in effect?
A power of attorney can be set up with limitations. It may be limited by a specific event, such as the sale of a house or car. It is also going to end at the death of the person granting the power of attorney.
Does the power of attorney papers need to be notarized?
It depends upon the probate laws in the state where the POA is going to be used. Contacting the clerk of the probate court in the city or county of residence will obtain the needed information.
How can you get power of attorney for your mother who has senile dementia?
Your father can execute a POA and name you as his attorney in fact. If your father wants to grant a POA to you then you should make an appointment with an attorney and go together. Your mother doesn't need to play any part in that process and she doesn't need to know that you have been granted a POA for your father. The POA granted to your mother should be revoked.
However, if your father is too ill to make that decision then you need to consult with an attorney about petitioning the court for appointment as your father's guardian or conservator. You could discuss your mother's condition at the same time. You may want or need to gain some legal power to handle her affairs as well.
How do I change the power of attorney in my Will?
If the property owner has directed that you sell the property the deed should be drafted in the owner's name as grantor. The attorney-in-fact signs the grantor's name on the deed. Under the signature line there should be a typewritten line that recites the grantors name "by Jane Smith as Attorney-in-fact". The deed must be accompanied by an affidavit executed by the AIF that states the POA is in effect and has not been revoked.
Can a Virginia bank notary notarize a power of attorney?
Most banks offer notary services for their customers. They may charge a small fee for non-customers.
What is the difference between durable Power of attorney then power of attorney?
A general (or limited or specific) power of attorney gives the attorney in fact the power to handle the financial affairs (but not medical decisions for) of the grantor.
A medical (or health-care) power of attorney gives the attorney in fact the power to make medical decisions for (but not handle the financial affairs) of the grantor.
The word "durable" on any power of attorney means that the power of attorney will not become invalid if the grantor is mentally or physcially incapacitated.
Although a medical power of attorney is also usually durable (since it would most often be needed when the grantor is incapacitated) the phrase "durable power of attorney" usually is used to describe a financial rather than a medical POA.
Does a will over power a powerof attorney?
The fact that there is a will doesn't matter. The power of attorney is valid until the death of the person it is associated with, or it is revoked, whichever comes first. The guardian is responsible for taking care of the individual. If the person handing the money (power of attorney) can't agree, they will have to go to the probate court for resolution.
Where can a power of attorney be signed at?
In the presence of a Notary Public, preferably with witnesses.
What happens if your power of attorney dies?
Generally, a Power of Attorney is extinguished when the person who granted it dies. If the deceased has any estate then a relative must petition the court to be appointed the Administrator of the Estate if there is no will or the executor if the decedent left a will.
How do I obtain a power of attorney over spouse?
You can't. A POA is granted to enable the grantee to assist the person while he or she is living. A POA becomes null and void upon the death of the grantor. Estates are handled by executors or executrixes that are chosen by the deceased person by means of a will, or they are appointed by the probate court.
Why do you need power of attorney?
You can read all about a Power of Attorney at the link below. The benefits are numerous and much needs to be considered if such a legal action is contemplated. A general or durable POA grants sweeping powers over all your assets to another person. You need to review the information and decide for yourself if one is generally necessary for you.
In some cases a Limited POA is necessary for various specific acts such as:
- when a person is away serving in the military and their spouse is selling their home.
- when a person who lives in another state is buying or selling real estate
- when a person is recovering from a serious medical condition and need to have someone act on their behalf during recovery
- any time a person must sign legal documents and will not be available to do so in person
Your sister has no power to sell any property your father devised to you in his will. A power of attorney is extinguished when the principal dies. If she had a power of attorney for your father it is no longer effective. Real estate must pass through probate in order for title to pass to the heirs. She has no authority to sell real estate unless she has been appointed the executor, the will gives her the authority to sell the real estate or the court has granted her a license to sell the real estate. You should seek the advice of an attorney, especially if real estate is involved.
How do you transfer power of attorney?
Yes. If for any reason you are no longer comfortable having your chosen agent or agents handle your affairs, you have the right to revoke the power of attorney at any time, as long as you are of sound mind. In order to revoke a durable power of attorney, you simply write or type a statement which includes the following (forms are available from LSE):
* Name and date
* You are of sound mind
* You wish to revoke the durable power of attorney
* Specify the date the original durable power of attorney was executed
* Specify the person or persons named as your agents
* Your signature
Distribute copies of that statement to your agent and to any institutions and agencies, such as banks and hospitals, that had notice of your power of attorney. After you revoke the durable power of attorney, you can 1) execute a new durable power of attorney naming someone else as your agent to handle your affairs; or 2) handle your affairs on your own.
==Another Perspective== A POA does not give the son the power over his mother that you describe. If your aunt wants to see you and is well enough to go out her son should not be prohibiting her from doing so. Perhaps he has been appointed his mother's guardian. If so, his rigid control over his mother should still be questioned. You should speak to the social worker at the nursing home and express your frustration over being prevented from visiting your aunt. Perhaps the social worker could explain the son's behavior. If that doesn't help then invest in an hour with an attorney who specializes in elder affairs. What you describe may be elder abuse. An elderly person who is living in a nursing home should have as much company as possible and should not be isolated from family unless there is a very good reason for doing so.
Can power of attorney open or close a bank account?
If the principal is living and owns the account and wants to close it the attorney-in-fact has the power to close it. The bank will want to see the original POA and, if diligent and legally sophisticated, will ask for an affidavit stating the principal is alive and the POA has not been revoked.
Absolutely not. He has a legal obligation to keep that money in your mother's estate. Self dealing by a fiduciary is against the law. He should be reported to the authorities ASAP. A POA grants sweeping authority over the principal's assets. A dishonest attorney-in-fact can wipe out an elderly person's assets.
If your mother lacks the capacity to monitor your brother's activity you can petition the court to be appointed her guardian. If you are appointed the guardianship will extinguish the POA. You should discuss the situation with an attorney.
Answer: This is a sad reality, but it does happen. A friend of a coworker had this happen to her mother. The father put everything in the sons' name saying he wanted the mother to have somewhere to live in case anything happened to him. Sure enough, the father dies and the son gets rid of his mom shipping her overseas to live with relatives where she died. Probably of a broken heart. Anyway, please, please, please consult an elder care attorney.
Does the person given power of attorney need to sign the form?
This is almost an oxy-moron but no, that would defeat the whole purpose of power of attorney. The Principal (or person giving power) must not only sign the power of attorney form but they must have it authorized in front of a notary.
Is a Power of attorney written in the United States valid in Puerto Rico?
As Puerto Rico is a US possession, the laws valid and applicable everywhere in the US would apply in Puerto Rico as well.
Who has more rights to power of attorney when no will is made?
The property should be secured and someone in the family must petition the probate court to be appointed the Administrator of the estate as soon as possible. Once appointed the Administrator will have the power and authority to take control of the assets and perform such duties as paying any bills regarding the real estate (taxes, utilities, insurance), paying creditors, notifying the government and insurance companies of the death, and making distribution to the legal heirs according to the intestacy laws of your state. Until an Administrator is appointed no one has any right to distribute or take any property.
State of Florida durable power of attorney free form?
Thank you for your respond Bob811, I'm trying to help an old lady and her son she's 89 and her son don't speck or write English. Her financial institution (Her Bank) were she gets her direct deposit from her social security check is asking in order for her son to deposits or making any withdraws for her or using her visa debt card needs a Durable Power of Attorney for Florida for her financials
Added: In that case, I would suggest that you might try to contact some local social service agency for a recommendation or assistance, or even the local Bar Association. I don't know where you are in Florida but once a week in Pinellas County the Bar Association used to hold a free clinic to assist people in need. I suspect that Bar Associations in other counties might offer similar services. Check around and good luck.
Is power of attorney allowed to keep everything?
Your attorney-in-fact acts for you at your request and for purposes of convenience. She/he has no right to take possession of and keep your property. If that has happened, revoke the POA and demand the return of all of your property to you. Notify any institution where your attorney-in-fact used the POA that it has been revoked. Then you can appoint a new attorney-in-fact. Self-dealing by an attorney-in-fact is against the law and you should not allow a person who you don't trust to have access to your property.
Does the attorney in fact under Power of Attorney have to provide an accounting?
Yes. The attorney in fact should keep a monthly account showing expenses, income and copies of the cashed checks (this last part is important). An attorney-in-fact under a Power of Attorney is bound by statutory provisions that govern fiduciaries. If they have control over an elderly parent's finances they should be prepared to provide an accounting because they should have nothing to hide. The elder's bank statements should be made available as well as their checkbook so that siblings can monitor the money going in and the money going out and that none of it is being spent for personal use by the AIF. An AIF can be held personally liable for missing funds.
There is a common problem with "family" AIFs who do not take their position seriously nor do they perform in a business-like manner. A POA grants sweeping powers over all a principal's assets. Mishandling of funds can cause a loss of entitlements if the elder has more coming in than they are allowed and someone else is spending it. In many cases the AIF is doing their own shopping while they shop for the principal, combining personal purchases with purchases for the principal, paying their own bills from the principal's checking account or buying gifts "from" grandma for their own children. They should expect to get audited and a savvy family member can and should petition a court to order an accounting.
The AIF should keep copies of checks, bank statements, deposits, check registers, paid bills, receipts and note down petty cash amounts spent on weekly purchases. Anything an adult child does as their parent's AIF should be open for inspection by siblings who are looking out for their parent's best interest. With-holding information, being secretive and being resistant to questioning is reasonable cause for alarm.The laws that govern Powers of Attorney are changing to reflect an increase in the financial exploitation of elders. A good example is New York where changes were made in 2009.
Those changes include:
- A requirement that the agent also sign the POA document.
- Limiting the power to change beneficiaries and make amendments to trusts.
- Requiring the agent to maintain a record of all receipts, disbursements, and transactions entered into by the agent on behalf of the principal.
- Requiring the agent to make records available within a certain time period when requested by a co-agent, certain governmental entities, a court evaluator, a guardian, or a representative of the principal's estate.
- Special court proceedings to compel an agent to produce the record of receipts and disbursements and for various other purposes.
- A mechanism for forcing the agent to provide an accounting of the principal's assets and income.
Can a daughter in law be power of attorney?
== == Only one "power of attorney" is valid. First have a lawyer determine who has clear power of attorney (usually the first person to obtain it). This person then makes all decisions about what happens to the assets of the mother. I would have to wonder WHY the daughter's daughter in law would want poa. If her intentions are honorable all she needs to do is to ask her mother-in-law to resign as POA and then get a new POA signed. If the principle is incompetent this can be done through the courts. My ex husband tricked my mom who has Alzheimer's into giving him POA. Within a year he had acquired everything she's ever owned including some very valuable real estate. He squandered all of her money and had her over medicated so that she was practically catatonic. It's 5 years later and my mom lives with me, but even though I have a statement from her longtime physician stating that at the time that she signed the POA she was not competent to do so, this whole matter is still wrapped up in PROBATE. And my mom cannot understand why she can't go home. BEWARE!!!!!! Persons can hold dual POA if the adult granting the action so chooses and is of sound mind when the POA is made. There cannot however be two separate POA's, persons's sharing the duties must be named on one document that is notarized and filed according to state laws. Likewise, states establish laws relating to the actions that can be taken with the adult who holds a POA, it is not in any state totally inclusive. The POA becomes null and void at the death of the grantor.
