Tag Archives: AUTHORITY

Does ATF need to be present if the loan holder closes an account?

Q: My sister is ATF on my father’s account and my father is thinking of disrupting our inheritances now before he passes away. Does she need to be present for him to do so? (Uniontown, PA)

A: I think calling in the ATF is a bit drastic. I am not sure what “ATF” means to you. I associate it with the Federal Bureau of Alcohol, Tobacco and Firearms. If you mean, POA as in Power of Attorney, I can answer your query. The person who appoints an Agent to act on his behalf under a POA is called the Principal. Generally, the Principal (in your case your father) can do as he pleases even after they have appointed someone as their Agent (your sister) on a POA. If the person is declared disabled or incompetent, then the powers of the POA come into effect.

Can I take her to court for transferring his assets with a POA?

Can I take her to court for transferring his assets with a POA?

Q: My husband updated his Will recently but failed to update his General Durable POA. I don’t know if he did it on purpose or simply forgot. A couple of days before he passed away his daughter took out $100K in stocks that were supposed to go to me after he passed. My question is, can she prove she acted on his best interest? She told me he asked her to take care of his affairs and that is what she was doing. However, as far as I know there were no witnesses when this conversation took place. Can I take her to Court and win on the grounds of the updated Will and how is her taking his money in his best interest? (Donegal, PA)

A:  More information is needed but based on what you say, she could have exceeded the scope of authority granted to her through the POA. Under the recent enactments to the PA Power of Attorney statues, the POA must specifically grant someone authority to make a gift to themselves for her to do what you say she did. You need to speak with a local attorney versed in the most recent POA statute and have him or her look at the POA document. I just spent almost three years litigating a similar alleged abuse of POA powers. I would act now before she liquidates the funds. If the attorney feels you have an issue he will want to get a court order to freeze the funds pending his investigation. Additionally, under the law in most states, she would be barred from testifying to the conversation with him under the PA Dead Man’s Act because she would financially benefit from a statement made by a dead person. You may also have an issue regarding your statutory right to elect against the will, if you have consequently been disinherited by her conversion of his asset.

Q: Can I take her to court for transferring his assets with a POA?

Q: My husband updated his Will recently but failed to update his General Durable POA. I don’t know if he did it on purpose or simply forgot. A couple of days before he passed away his daughter took out $100K in stocks that were supposed to go to me after he passed. My question is, can she prove she acted on his best interest? She told me he asked her to take care of his affairs and that is what she was doing. However, as far as I know there were no witnesses when this conversation took place. Can I take her to Court and win on the grounds of the updated Will and how is her taking his money in his best interest? (Donegal, PA)

A:  More information is needed but based on what you say, she could have exceeded the scope of authority granted to her through the POA. Under the recent enactments to the PA Power of Attorney statues, the POA must specifically grant someone authority to make a gift to themselves for her to do what you say she did. You need to speak with a local attorney versed in the most recent POA statute and have him or her look at the POA document. I just spent almost three years litigating a similar alleged abuse of POA powers. I would act now before she liquidates the funds. If the attorney feels you have an issue he will want to get a court order to freeze the funds pending his investigation. Additionally, under the law in most states, she would be barred from testifying to the conversation with him under the PA Dead Man’s Act because she would financially benefit from a statement made by a dead person.

Can I create a living trust or will with my mother’s POA?

Q: My wife and I have been resident caregivers for the last six years of my aging Mother of 90 years of age. She assigned me as her Durable POA approximately seven years back. She is now mentally incapable of making decisions and is approaching hospice care. I would like to designate who and where her final assets (Home and less than $150T cash) would go upon her death. There are siblings involved. She has stated to us in the past how she wanted her remaining assets to be divided. Is her POA within my scope of authority? (Mt. Lebanon, PA)

A: I suggest a consultation with a lawyer. Generally, a Power of Attorney does not allow an Agent to create a trust or a will for the Principal. However, if the Power of Attorney you reference contains the appropriate powers, you may be able to set up trust or similar accounts which will achieve the result you are looking for. I would take the POA to an estate and trust lawyer for review.

Can executor disconnect power without notice?

Q: I was living with my mother-in-law when she passed. Her “best friend” who is the executor in the will, has turned off the power without notice and closed her bank accounts. She has not informed any of the creditors of her passing or close friends. The house that she resided in for 32 years has a reverse mortgage. However, I still reside there with her seven cats who I love dearly. I pay the water, sewer, garbage and gas bills. The gas bill was three months behind when she passed and am currently trying to bring current. Please advise thank you for your time, any information is very much appreciated. (Squirrel Hill, PA)

A: If this “best friend” has not been appointed Executor by the court, she has no authority to act on your mother-in-law’s behalf. Merely being named Executor in the will does not give her such authority. She needs to be appointed by the court. I would call the utility companies and inform them what happened, and that no executor has been appointed and you are living in this house. If you get nowhere, call the PA Public Utilities Commission. It regulates utility companies. They may have a remedy and complaint filing procedure.

I am mom’s healthcare and financial POA. Nephew moved in. Can I charge him rent?

Q: My mom just let her grandson who is 45 move into her house. I told her don’t do it, not a good idea! She is 84 and has middle stage dementia (Alzheimer’s). She forgets from one moment to the next sometimes. She is of sound mind. I had to have an investigation for adult protective services because of my brother and nephew. It was unfounded. But how do you prove manipulation and coercion, etc. She raised her grandson so he has a hold on her. Myself and my husband have been helping her every day. She is still at home, but between us we would spend 5 hours a day at her house. My nephew is considered disabled and mentally ill. He says he couldn’t find an apartment. No one would rent to him. That’s because he has a record, has burnt his garage down, DUI, suicide attempts and the list goes on and on. I hardly have enough money to pay her bills every month. She had lost her husband a year-ago so her income reduced dramatically. Can I charge him rent being that I am her POA or does she need to make that decision? Her doctors won’t give me a statement saying she is unable to make decisions in her own best interest.

A: It may be an uphill battle. Your mother is still competent, albeit she has some dementia. As she is competent, even with the POA in place, she can still make all her own decisions. I understand your concerns. This grandson could potentially cause stress on her, may financially exploit her, and may be a detriment to her health. As her Agent on a POA, you can work to keep her money guarded. You can visit her banks, make sure the POA is on file and ask them to watch for suspicious financial activity like large withdrawals. You can explain the situation with the grandson. Also, if you feel the living environment is unhealthy, you can call Adult Protective Services and see if they will do a home visit and assess the situation. I would visit her as often as possible and monitor things before reacting.