Q: How does power of attorney work in cases where the parent is no longer there, mentally, has offspring, and has NOT written anything in the will about power of attorney? If one of his children asks to get power of attorney because of his/her parent’s weakened metal state, is it given to that sibling without informing the others first? Suppose that sibling happens to be a con-artist, hoping to take his/her parent for all his money? Lastly, where do you go to get power of attorney in this case? The state? Hire an attorney? (North Strabane Twp., PA)
A: So long as they are competent, a person can sign a Power of Attorney which appoints anyone he or she chooses as Agent. The Agent does not have to be the person’s spouse or child. A person who becomes appointed under a POA, has no duty to tell anyone, including his or her siblings. It is best to have an attorney consult with the person who is designating the power, the principle, assess his or her competency, then if appropriate, prepare the Power of Attorney. Depending on what you mean by the parent “…no longer there, mentally…” could affect whether the parent is competent to sign a POA. You can consult with an attorney or take this parent to one.
Q: My father’s personal injury attorneys created a Power of Attorney and I was the Agent. I served in that capacity for about 2.5 years. The estate is being settled exclusively by the probate/estate attorney.
A: Possibly. If the Power of Attorney authorizes payment of a fee for Agent services performed, then yes. If not, then no. If the POA authorizes payment of the Agent, you can submit a bill to the Executor.
Q: I have crafted my accounts, etc., to be transferred to my children, equally, upon my death. In the event I am incapacitated before I die, is a Durable Power of Attorney for Finances and Advance Directives enough to give my children access to my accounts without having to create separate accounts with their signing authority already on them, and authority to manage my care? (McMurray, PA)
A: Yes, a legal General Durable Power of Attorney should empower an agent to do the things that the principal wants the agent to do. However, it is better if these things, which are called, “powers”, are listed as specifically as possible in the document so that the agent’s authority to exercise such powers are not questioned. My suggestion is to consult with an attorney in drafting a POA so that it will be customized to accomplish what you want it to. As mentioned, a POA is a very powerful document and if misused, can lead to problems with taxes and Medicaid, to mention a few. As to an Advanced Directive, that is a medical document that comes into effect at the end-stage of life. It should have nothing to do with your finances.
Q: There are multiple issues. My mother lives in the District of Columbia and has serious mental health issues, but she chose me as her Personal Representative in her will many years ago. I believe she is in the early to middle stages of dementia and believes I am her enemy, so she may designate someone else besides me to be her Power of Attorney in general and for health care. If she does this, does this action trump me as her Personal Representative in her will? If so, will I need to apply for guardianship and conservatorship if this happens as she continues to mentality deteriorate? Right now, she has some capacity, but has demonstrated that she cannot take of herself. She is a hoarder. She is not able to wash her clothes. She has apathy concerning her hygiene and living in a clean and sanitary environment, and she will not allow anyone into her house to assist her. At some point, I know that I will need an attorney, but I am not sure when to do this and how to help her. (Pittsburgh, PA)
A: An executor of a will handles the affairs and assets of a person after that person has died. The executor has no such power prior to the death. An agent on a power of attorney has power to act on behalf of a principal while the principal is alive but has no such power after the death. The agent on a power of attorney must act in the best interest of principal and in accordance with the powers specified in power of attorney document. My advice would be to meet with an elder law attorney and have your mother assessed for competency. You can also ask her physician to give you such opinion. If deemed competent, she can execute a power of attorney in which an agent is designated to act on her behalf. If not deemed to be competent, she cannot execute a power of attorney. If there is no power of attorney in place and she continues to deteriorate, you or another family member may have to petition the court to become her guardian. This will require the assistance of an attorney.
Q: My sister, brother and his wife have POA over our mother. For 12 years, they would not let me see her. Now they expect me to take care of her so they can travel. They listed me as first contact without my consent or signature on her medical, dental etc. Is this legal? My sister put herself last because she plans on traveling 3 weeks out of the month. Now that our mom is 95 and needs more help. Then, I get a phone call from my brother stating that I am the first contact and all her appointments are written down along with her medications. I am going through extensive PT right now and they are all retired and my husband and I are not healthy. If they are going to do this to me can I charge them for what a 24-hour caregiver makes? (Pittsburgh, PA)
A: Under PA law, you would have to sign the “Acknowledgement” portion of the Power of Attorney document to be legally bound to serve. It is not enough just to name you as an Agent. I think if it becomes a problem, you should ask your siblings for a copy and review it with a lawyer. Also, even if you were an Agent on the POA, under PA law, you can resign being an Agent by providing written notice to all parties involved. As for earning a fee, this needs to be specified in the POA document.