Tag Archives: POWERS

Will a wife still use a durable POA if I’m in my right mind?

Q: I went to a hospital to have surgery and everything thing went wrong. That was three years ago. I gave my wife a durable power of attorney before the surgery. I was in ICU for several month. In January of 2018 my wife and I separated, and she stuck me in a nursing home. I became paralyzed at the hospital three years ago. While in the nursing home my brother and I were informed that when my mom died there was life insurance. My brother received his share. My wife took mine and cashed it saying she had power of attorney. At the time of the surgery things were not clear. The past two years I’ve been making my own decisions. Was she right or did she forge my name? (Jefferson Hills, PA)

A: If someone is competent to act on their own, they still can and the person holding the POA as Agent must defer to them. If the Agent continues to act against the wishes of the Principal, the Principal can revoke the POA. In your situation, if you were incompetent and your wife was acting under a legal POA signed by you which appointed her as Agent, then she can act on your behalf. The question is whether the POA specifically allowed her to exercise control over and keep for her own, insurance proceeds payable to you, assuming that is what she did. The basis of every POA is that the Agent must act in the best interest of the Principal and only act within the limitations of the written Power of Attorney. If this POA was drafted after January 1, 2015 when the new POA statute came into effect, the document must clearly state that she is authorized to liquidate insurance proceeds and make a gift to herself, assuming that is what she did. I suggest you gather documents such as the POA and the insurance records and consult with an attorney regarding whether the POA allowed your wife to do what she did.

With POA can she kick me and my daughter out of my mother’s house?

Q: My sister supposedly has a Power of Attorney from my mother. I have never seen any papers and my daughter and myself have been in the house for 20 years. We were taking care of her before my sister put her in a nursing home. She is also signing my mother’s name on checks and papers. (Dorseyville, PA)

A: She is only authorized to perform acts on behalf of your mother that are authorized by the Power of Attorney. In order to determine this, demand to see the POA. If she will not share it with you, call Adult Protective Services and tell them your concerns.

Can a person acting as POA remove a beneficiary from policies?

Q: My sister will NOT talk to me and behind my back put my mom in a nursing home. My sister went got POA health and financial from my mom. Now she wants me to pay half of all debts. My mom told me she put me and my sister as beneficiaries on her life insurance policies. Now that my sister is POA can she remove me as beneficiaries from those polices and not tell me? (Jefferson Hills, PA)

A: Under the new enactments to the Power of Attorney statute, effective January 1, 2015, an Agent can only change beneficiaries on a life insurance policy if specifically granted that power in the “Powers” section of the Power of Attorney document. Under the prior Power of Attorney Act, effective in the year 2000, an Agent may be able to do this if there is similar language giving such authority. Your question depends on when the document was signed and how it was drafted. You should get a copy and consult with a lawyer.

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 my brother who is POA do a living trust for mom?

Q: My brother has POA over my mom’s assets. Can he change her will and estate into a living trust without her signature or notary? He says he can. (Pittsburgh, PA)

A: Generally, the Power of Attorney documents must specifically empower the agent to create trusts, or for your brother to do so. You should have the trust instrument reviewed by an attorney. An Agent on a Power of Attorney cannot execute a will for a Principal, nor change it.

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.

Will a Financial Durable Power of Attorney cover my incapacitation?

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.