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.

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