If you're the agent of a the POA, you cannot transfer it to someone else, including to a family member such as a sibling or child. The only person who can transfer the POA is the principal, so long as she's competent. A POA can't be transferred after the principal passes away.
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In some states, a doctor needs to verify that you're incapacitated so that the springing POA takes effect. If you're the agent of a the POA, you cannot transfer it to someone else, including to a family member such as a sibling or child. The only person who can transfer the POA is the principal, so long as she's competent.
Access to the parent. An agent under a financial power of attorney should not have the right to bar a sibling from seeing their parent. A medical power of attorney may give the agent the right to prevent access to a parent if the agent believes the visit would be detrimental to the parent's health.
Christina Jeter, Esq., of The Jeter Law Firm, PLLC, advises, “It always makes sense to have a power of attorney in place, regardless of any situation. It is better to be prepared than to have to scramble to think of what an elderly parent would really want.”
When you’re ready to set up the POA, follow these steps: Talk to Your Parents: Discuss what they need in a POA and what their wishes are when it comes to their finances and health care. You must also confirm their consent and make sure they agree with everything discussed.
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The first step to getting power of attorney over an elderly parent is to research powers of attorney, understand how these documents work in your state and the scope of available powers. Talk to your parent so they understand why you want to take this step and the benefits and drawbacks of the action. Consult a lawyer who can help you draw up a document that details your parent’s rights and the agent’s responsibilities, whether that’s you or another person. Finally, execute the document by getting all parties to sign it and have it witnessed as required by state law.
Arranging a power of attorney for your parent is a good way to open up a discussion with them about their wishes and needs for the future. Jeter continues, “Having those respective POAs in place means that an elderly parent has had time to think about what they really want for their medical care and their finances when they aren’t coherent to make such decisions.”
A durable power of attorney lasts after the principal’s incapacitation. What you can do with a durable POA is based on both the document and state laws. In some cases, you may only be able to manage the principal’s finances and will need a separate medical power of attorney to make health care decisions. These POAs are used when a person can no longer handle their affairs, and it can end in several ways. They can be revoked upon the principal’s death or when a guardian is appointed. The principal can revoke the POA if they’re no longer incapacitated. For example, if a person wakes from a coma, they can take back control of their finances. There may also be conditions in the document that, if fulfilled, end the POA. A durable power of attorney comes into effect on the day it’s signed unless otherwise specified.
Last Updated: July 16, 2021. A power of attorney (POA) can be an important element of planning for your elderly parent’s future. It allows another person to take action on your parent’s behalf, ensuring bills get paid and medical decisions can be made in the unfortunate circumstance that your elderly parent is unable to do those things on their own ...
There are two separate documents you’ll likely need as part of comprehensive planning for your aging loved one. The first is a financial POA , which provides for decisions regarding finances and for the ability to pay bills, manage accounts, and take care of investments. The second is an Advance Healthcare Directive, which is also known as a “living will” or a “power of attorney for healthcare.” This document outlines who will be an agent for healthcare decisions, as well as providing some general guidelines for healthcare decision-making.
A notary public or attorney must witness your loved one signing the letter of attorney, and in some states, you’ll need two witnesses. The chosen agent must be over 18 and fully competent, meaning they understand the implications of their decision. When filling out the form, the parent must specify exactly which powers are transferring to the agent.
A medical POA is different from a living will , which states what medical procedures a principal does and does not want done. In the case of a medical POA, the agent can make all health care decisions for the principal. Because of this, your parent needs to make their wishes known to the agent before they’re incapacitated. The American Bar Association has detailed information available about medical powers of attorney and the process of giving someone that power.
When you have power of attorney over an aging parent, this is a form of permission for you to make decisions that your parent necessarily cannot. As we mentioned in the intro, you must draw up a legal document that’s signed by both parties for the power of attorney transfer to be legally binding.
Your parents are ultimately the ones who will determine if they want someone to have power of attorney over them. Ideally, they should discuss with you or another adult child the provisions of the power of attorney documentation years before they need the kind of care outlined therein. Doing so ensures they’re of sound mind and the power of attorney can go through without a hitch if needed.
Instead, the provisions of a springing POA grant you the power to make legal decisions only if and when certain circumstances arise. For example, maybe your parent becomes incapacitated.
A durable power of attorney would follow the steps outlined in the intro. When both parties sign the document, the durable POA goes into effect for you to act on behalf of your parent.
They made decisions about what you ate for breakfast, what time you went to bed, and what you wore to school, along with a myriad of other day to day decisions. Well, those days have long since passed and now, as seniors, your parents may struggle with or even be unable to make important decisions for their health and well being.
You may not realize this but it’s a good idea for anyone over the age of 18 to have a Power of Attorney (POA).
Maintain this power of attorney until one or both parties wants to revoke it
When a sibling takes advantage of an elderly parent, it’s a distressing situation all around. The abuse can be physical, sexual, financial, or even neglectful,
If the police believe your elderly parent is not being held against that free will, then they don’t have the legal authority to assist.
If the police suspect that your elderly mom or dad is being abused, they might arrest your sibling. At the very least, they should separate your parent and your sibling for the time being.
Your elderly parent has lost weight because they’re not being fed often enough.
What even if the family discussion failed to change your sibling’s abusive ways? Then you need to let your sibling know what you’re willing to do next. Tell them that you’ll call the police or APS or look into shifting the power of legal attorney or even guardianship.
If you feel like your words to your sibling fell on deaf ears, then it’s time to involve the rest of the family. Have a meeting to discuss how to prevent this familial abuse from occurring again. An intervention might even be necessary.
If they’re stealing money, maybe it’s because your sibling is hard up for cash. They might have had to quit their job to care for your parents full-time, and that’s a huge financial hit.
If you suspect that the agent is taking advantage of your parent and these steps do not work, you need to challenge the power of attorney in court. First, you will need evidence that the agent is negligent or abusive. Your lawyer will help you provide this evidence, and the judge will decide if it is sufficient to ask for the agent’s removal.
If the judge finds that your sibling has been abusing your parent as the power of attorney, you can prosecute that sibling for things like fraud, embezzlement, exploitation, and theft. These are serious crimes that can lead to imprisonment and steep fines. State laws will dictate how much those fines will be, but these are serious consequences that have a far-reaching impact.
If they are still well enough to make decisions, they can revoke the power of attorney. If that does not work, consider enlisting the help of an attorney and having your attorney approach your sibling, asking them to step down as agent. If that happens, the power of attorney document will have an alternate agent that will step in.
The most common causes of abuse with power of attorney involve finances. Since the agent has the right to sign checks and pay bills, unscrupulous individuals sometimes take money for themselves . If you suspect this is happening, you may want to consider going to court to override power of attorney and protect your parent.
A power of attorney document gives the agent the right to legally sign documents, make healthcare decisions, and take care of financial transactions on behalf of your parent. Under the law, they are required to act in the best interests of your parent. They are not allowed to do specific things, including:
As long as your parent can make decisions for themselves, they can revoke or change the power of attorney. However, once they become incapacitated, they no longer have that right. At that point, only the courts can require a change.
That said, the agent serving as a financial power of attorney does not have the right to prevent you from seeing your parent. In the case of medical power of attorney, the agent can prevent access but only for the sake of protecting the parent’s health.
If the POA does not do either of those things, then somebody will probably have to set up a guardianship and conservatorship for your mother.
If your brother refuses to act and there is language in the poa that allows him to relinquish the poa and your other brother to take over, then he can do it. If there is no language in the poa to that effect, then he cannot do it.
Unless there are provisions in the existing POA document that either names a back-up attorney-in-fact or allows the attorney-in-fact to name a replacement, the answer is no. Only the person granting the power may choose who can wield that power. If your mother is no longer capable of making such a decision, you can ask the local probate court to appoint you or your brother as guardian and/or conservator.
Your brother may decline to serve as your Mother's agent. If the Power of Attorney designates a successor agent, then that successor can then act. However, if no successor is named, then generally, your brother may not name a new agent. For more details, you should consider consulting with an attorney who specializes in estate planning.
An agent under a POA can resign at any time. If the POA has an alternate agent named, that agent would become the new acting agent. If the POA does not have an alternate named or if a named alternate cannot serve, a conservator ship will be required.
Generally, no , that is not permissible. The only exception would be if the power of attorney designated the second brother as an alternate if the first brother did not serve. You need to read the power of attorney. If it does not specifically name the second brother, you may need to get a guardian appointed for the mother to stop the wrongful acts.
He can relinquish, but cannot transfer the Power of Attorney. But if that occurs, someone in your family or some other person will have to apply for a conservatorship of your mother so they have authority to obtain the necessary care.
Naming a successor agent (or two) is recommended when establishing the original POA document. It gives the principal a legal back-up plan in case the original agent resigns, becomes incompetent themselves or passes away.
Two of the most common scenarios are when a caregiver no longer wishes to serve as POA for a loved one and when a family member wants to challenge the legality of the current POA’s actions.
Guardianship can also play a significant role when a person wishes to challenge a current POA. This may be appropriate if you know or suspect that an agent has abused their authority and you wish to take over their duties.
A concerned party, such as a physician or Adult Protection Services (APS), may file a referral to a local public guardianship service provider indicating that the indigent and/or incompetent adult requires assistance making medical, financial, and/or daily living decisions.
Unless the document grants the original agent the specific ability to delegate powers to another individual, the general rule is that no, the named agent may not transfer POA. Guardianship is the only other option for passing on this responsibility.