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From: 2172 Independent Elder Care Professionals

Eldercare Professionals Answer Power of Attorney Questions

    My 89 yr old father took me to his financial institution and made me co-owner of his accounts this past summer. He also recently named me his Healthcare POA and I have been making those decisions for him. He and my other siblings asked me to have a Durable POA drawn up. While waiting on the paperwork my fathers condition deteriorated and he can no longer sign his name. Is it legal if he just places an X in the signature field? If I wait another few days he may be unable to place the X or live long enough to have a Guardianship appointed. What is the correct and legal way to handle this situation?
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    William L. , Elder Law Attorney answers:
    A power of attorney can be signed with an "x" if it is also witnessed just below that "x" Next to the "X" you should write "his mark". The real issue is his ability to understand that the is appointing you as his agent and what that means. If he does not, the POA is not good. Also, if he is near death - as indicated by the guardianship statement - and you are on his accounts, I don't see the real benefit of the POA. What is it that you are needing the POA to accomplish? Bill Lutz

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    How can i get legal rights to make medical decisions regarding my husbands medical treatment? My elderly husband has alzheimers disease and cant make decisions for himself? Is Power of attorney the best approach?
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    Robert F. , Elder Law Attorney answers:
    The Texas Health and Safety Code provides that if an adult patient of a hospital is incapacitated, certain adults can act as a surrogate (substitute) decision maker. While it is always a good idea to have a Medical Power of Attorney, if there is none and the patient is not competent, the law states who may act. In order of priority, the following people are authorized to act on behalf of the patient. 1) The patients spouse 2) An adult child of the patient who has the waiver and consent of all other qualified adult children to act as the sole decision maker 3) A majority of the patients reasonably available adult children 4) The Patients parents 5) The individual clearly identified to act for the patient by the patient before the patient became incapacitated, the patients nearest living relative, or a member of the clergy.
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    Robert F. , Elder Law Attorney answers:
    The Texas Health and Safety Code provides that if an adult patient of a hospital is incapacitated, certain adults can act as a surrogate (substitute) decision maker. While it is always a good idea to have a Healthcare Power of Attorney, the law states who may act for the incapacitated patient if there is no Power of Attorney. In order of priority, the following people are authorized to act on behalf of the patient. 1) The patients spouse 2) An adult child of the patient who has the waiver and consent of all other qualified adult children to act as the sole decision maker 3) A majority of the patients reasonably available adult children 4) The Patients parents 5) The individual clearly identified to act for the patient by the patient before the patient became incapacitated, the patients nearest living relative, or a member of the clergy.

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    My grandmother is 95 years old and lives in Florida. She recently gave me Power of Attorney so that I could manage her finances as we are planning to place her in an assisted living facility. I'm now discovering that she has a lot of debt (credit cards, credit line, reverse mortgage) and I'm concerned that I may be held responsible for these debts. Am I responsible for my grandmothers debt if I am her poa?
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    Jay F. , Elder Law Attorney answers:
    No.
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    David A. , Elder Law Attorney answers:
    No, not if you clearly sign your name and show it as under the POA. You need to scrutinize every one of her bills/debts to make certain there are legitimate.

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    I am my elderly mother's Power of Attorney (POA) for her medical and financial issues. I am headed out of the country. My mother is unable to sign any legal papers. Who could be considered the "agent"? How can i temporarily assign a third party to do this task while i am out of country? What forms are required?
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    Emil K. , Elder Law Attorney answers:
    Thank you very much for your question. The answer depends both on the wording of the Powers of Attorney you have, and the types of authority you want to hand off temporarily. There is an ability in North Carolina to name a substitute agent, but it is unusual, and typically has to be addressed in the original document. The best option is not available, since you say that your mother cannot sign anything new. There may other options for granting someone authority while you are gone. Banking access is relatively easy to handle if you have on-line access to the account. So there is no set form for this, but it may be possible. I could tell you more if I could see the documents.
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    Lauren W. , Geriatric Care Manager answers:
    It may depend upon the POA itself and how it is written, but typically, it is ideal to delegate to whomever is named as back up agent. Consult an elderlaw attorney to draw up the delegation paperwork, but typically, unless it is a long absence, it is not recorded; it is just drawn up and ready if needed. If it will be a longer absence and/or the temporary agent is going to need ability to write checks/access accounts, then it would need to be recorded. Again, contact an elderlaw attorney.
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    Dori W. , Elder Law Attorney answers:
    You need to have your mother's Power of Attorney reviewed by an attorney to see if you have the authority to appoint a successor. The power to appoint a successor must be included in the document. Unfortunately, not all powers of attorney have this language. It is also possible that your mom named a successor in her document. If that is true, the successor named in the document can act as your mom's power of attorney while you are unable to act.
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    Mary M. , Elder Law Attorney answers:
    The answer to your question really depends on the wording in your mother's Durable Power of Attorney. If an attorney drafted the document, an alternate is probably included in the document itself, if your state law permits. Also, you probably have the authority to appoint a successor to act for you, if you are unable to act. Unfortunately, some people get an "online" Durable Power of Attorney, and most of the time those documents do not have a provision for an alternate or for you to name an alternate.

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    i have a family friend that is in a relationship with someone that has checked into rehab. This person has signed her power of attorney over to her mother. Does that POA give her mother all financial and legal rights over her life while she is checked into rehab? Could a husband, fiancé, and/or domestic partner have some rights over financial and legal matters as well ???? HELP
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    Paul N. , Elder Law Attorney answers:
    There are power of attorneys for financial matters and powers for healthcare. The answer would depend upon which kind of POA it is. Also, a POA does not prevent a person who has joint ownership over a bank account from exercising the rights of a co-owner. Does that help?

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    I want to get my moms house in my name again. When my dad passed away 35 years ago I sold it to m mom because I was married and didnt want my husband to try and claim it later. Now, my mother is 97 and living with me. I dont want to sell the house to anyone else. Can i buy my moms house with power of attorney?
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    Carolyn K. , Elder Law Attorney answers:
    Maybe. Depends on what the POA says. If you are truly paying her for the value of the house it is probably OK. If the transfer is a gift, POA needs to grant you specific authority to gift.

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    I'm conservator of my elderly sister who has Alzheimer's disease. My sister is in a nursing home. I have been her guardian for a number of years. Is the conservatorship and guardianship that I have the same as having power of attorney?
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    Sanford M. , Elder Law Attorney answers:
    As Guardian and Conservator for your sister you have the legal authorities and responsibilities granted to you under the Probate Court's Order (or Letters of Authority). Generally, once a person has a Guardian, he or she will not be able to execute a Power of Attorney without a further Court Order. Also, as your sister's Conservator, you should have all of the legal authority you need to carry out her financial affairs. For more specific clarification of the scope of your authority, I recommend either request clarification from the Court or hire an experienced Probate lawyer to assist you.

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    I have POA for my elderly mother, who is showing some signs of early dementia and memory loss. I have been trying to help her with her medical appointments, etc, but she has a personality disorder and is distrustful. Her actions in the past has caused me great anxiety and heartache. My elderly mother called me this morning to tell me that she no longer wants me to be involved in her medical care at all. She requested that I not speak to her social worker, doctors, ER, anybody involved in her medical care. I asked if I should resign as POA and she said yes and to stay out of her medical affairs. I agreed and have assented to her wishes. So now, how do I legally resign as her POA and also, if she is deemed incompetent in coming months, would stepping down be a legal recourse for me if I do it now before her psychiatric evaluation. She has accused me of things in the past, is distrustful of my help, has not been kind about it, and I personally don't trust her. i am also a senior and have health issues, so trying to make all my mother's medical needs happen for her has been a hardship anyway. What can I do? And how can I go about it legally to protect myself?
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    Karen A. , Nurse and Care Manager answers:
    You are more than welcome to do a consult with us either by phone or in person. Please call me
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    Dan K. , Elder Law Attorney answers:
    I'm so sorry that you are in this position. You can certainly resign as agent under your mother's power of attorney by sending to your mother a written note indicating that you have resigned as agent as of a certain date. From that date on you will have no authority to act as her agent unless she re-appoints you by a different written power of attorney. However, this doesn't seem to me to be a good result - - - unless your health compels you to do so. I would recommend that you offer to meet with your mother and her attorney to seek mediation of whatever concerns your mother may be experiencing, and hopefully, to work out a solution where your mother will be able to feel safe in relying upon your ability to assist her. If she has no attorney, then you should offer to meet with her with an attorney of her choice and make clear that the attorney is representing your mother. This is not a situation in which an antagonistic confrontation will benefit either of you - - - but particularly your mother. Of course, I recognize that your mother's dementia and/or paranoia may preclude her ability to make a rational decision with respect to your offer. But in fairness to your relationship with her, and with respect to your mother, I recommend that you lend every effort to try to seek reconciliation on terms that your mother will deem to protect her perceived interests. One possible alternative would be to have your mother create a revocable living trust that would hold all of her assets. She could name a trusted third party, or even a financial institution, as the trustee of the trust. This would provide financial management and safety for all assets owned by the trust, as well as protection from improvident actions that your mother might be inclined to take from time to time. Such a strategy would also relieve you of the continual conflict between yourself and your mother over the protection of her assets, and decisions which you believe may be detrimental. You could be freed up to focus your efforts on her personal care and health care arrangements - - - if she was willing to allow that. If she needs assistance with those arrangements, she can also retain independent persons (perhaps a Geriatric Case Manager) to manage her care and advise her on these subjects. If your mother is not willing to engage in such a conciliatory response, and if her condition continues to deteriorate to the point that she is unable to adequately manage her financial or health care needs, or if she engages in conduct that is detrimental to her health or financial well-being, then you may have no recourse but to seek legal counsel on your own to initiate a guardianship proceeding against your mother. In a guardianship proceeding the Superior Court will make a determination of whether your mother is able to adequately make personal, financial or health care decisions. If not, then the Court will appoint a person with authority to make such decisions as may be needed for your mother and terminate her authority to make such decisions for herself. This is a costly litigation proceeding in which your mother will be aware of the position that you have taken, and will have legal counsel appointed to represent her interest. So if your position is not upheld by the Court, it can be very detrimental to your ability to maintain a normal relationship with your mother. I hope that your mother will be willing to seek a conciliatory response within the safety of her own legal counsel's office. Once again, I'm sorry that you are being called upon to help your mother under these circumstances. I commend you for your caring attitude.
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    Barbara B. , Geriatric Care Manager answers:
    You have a very complex situation here. It sounds as if your mother is quite ill, and probably currently does need assistance with her affairs, medical and financial. Is there a backup person on your mother's power of attorney documents? If so, that person can and should take over. I suggest you seek assistance from an elder law attorney in your area to assist you in this process.

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    I had POA for each of my parents. They resigned as Trustees for their Revocable Living Trust and named me as the sole Trustee. My mother died in Feb., and my father is 90 yrs. old. The details of their financial assets is tremendous! I have spent months trying to organize & verify everything. This is like a full time job since last Oct. How much can I be compensated for my work as POA and sole trustee?
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    Ryan P. , Elder Law Attorney answers:
    Virginia has a "Guidelines for Fiduciary Compensation" document that is available if you search for it online. Most Virginia Commissioners of Accounts use this guideline when determining allowable fiduciary compensation, but additional compensation is sometimes allowed in extraordinary circumstances.

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    If my parents declare bankruptcy and I have financial Power Of Attorney (POA), what is my role in the bankruptcy? As POA, do I have responsibilities? Is there a particular role I must play?
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    Ronald A. , Elder Law Attorney answers:
    inquire about a "best friend" bankruptcy

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    I believe that I am Power of Attorney for my father; he currently is in ICU due to a stroke and heart attack. Our family is making sure that the necessary documents are in place... is there a document that shows I am his POA? What should I be looking for or who do I call?
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    David T. , Financial Planner answers:
    If you are Power of Attorney then you and your father would've had to have a Power of Attorney form signed and notarized. If you remember doing that, then look for the POA form amongst his documents. If you can't find it or you do not remember doing it then you would need to have one executed. You can download one off the internet or call a professional to assist you.
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    Ronald F. , Elder Law Attorney answers:
    If you were appointed to handle your father's financial decisions, that power should be documented with a Power of Attorney form. Once you find it, make sure that the form was executed properly (i.e. initialed and signed where necessary and with notary stamp). You should also look for a Health Care Proxy form which allows the appointed person to make health care decisions. I also would recommend that you contact his attorney, if any.
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    Ronald F. , Elder Law Attorney answers:
    If your father appointed you to handle financial decision making, that power should be documented under a Power of Attorney form. Once you find it, make sure that it is executed properly (i.e. initialed & signed where necessary with a notary stamp). You should review the Power of Attorney to be sure what powers were specifically granted. In addition to the Power of Attorney, you should look for a Health Care Proxy form which will allow the appointed agent to make health care decisions. I also recommend that you contact his attorney if he has one.
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    William I. , Elder Law Attorney answers:
    Yes, a Power of Attorney is a signed, notarized document. You should look for a formal, typed document that says "Power of Attorney" at the top, and has a notary public's signature and seal at the end. POA's generally are not registered anywhere; it would be with his other imnportant papers. If your Dad has a regular attorney, try contacting him/her.

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    My daughter is claiming to have POA for my dad, he has been deceived, and he is in sound mind. She took my Dad and had bank accounts and his direct deposits switched in her name, had me falsely arrested and I found out he was rushed to ER the day after I left for stress. I had to fight my sisters for a year ago to get my dad out of nursing home and back home and received little or no help from any family members to help.
    I let my daughter and her boyfriend move in because they got evicted and was helping out til they could save money and move out. Now she is trying to evict me so they can have the house which is deeded to me upon my fathers death. So can she legally evict me with only her signature of filing eviction and probably without my dad's knowledge? He still has possession and say so until he passes I made sure of that just in case something like this would happen so he still has a home until he passes?
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    Cynthia A. , Elder Law Attorney answers:
    There must be a validly obtained document called a Power of Attorney naming a person as agent to act for the elder before a power of attorney exists in any person to act for the elder. If the elder is able to make decisions for themself, they can direct an agent to act for them. Legally, the agent can only do as the elder directs them to do. If a power of attorney was validly made by the elder when of sound mind and the document allows for it to continue in force if the elder becomes incapacitated, then the agent may act for the elder using the power of attorney even when the elder cannot make decisions for themself. The agent who accepts a power of attorney is held to the highest standard of responsibility recognized by the law, a fiduciary responsibility, to act only in the best interests of the elder. The agent is responsible to the state's probate court if the agent does otherwise. An agent only has the same powers as the person who named them agent in a valid power of attorney, or their power can be limited by the terms in the power of attorney.

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    Is the power of attorney liable for a person's bills if they enter a nursing home? What if I signed paperwork that I am the 'responsible party'?
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    Julia B. , Elder Law Attorney answers:
    I would take a copy of any paper work you signed upon admitting your family member to the nursing home along with the power of attorney and meet with an elder law attorney as soon as possible
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    Deborah H. , Elder Law Attorney answers:
    You may have unwittingly accepted contractual liability. You should see an Elder Law attorney as soon as possible to review the contract that you have signed. If you do not have a copy of what was signed, be certain to obtain one before visiting the attorney.

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    My mother put multiple Powers of Attorney on her healthcare directive, designated to "act jointly." If we can't reach consensus, what do we do? Decisions regarding her care are now stalled because one of the three is refusing to agree? Do we have to reach consensus or can we have a majority rule? This is very hard. Thank you!
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    Karen B. , answers:
    If the document says act jointly, then that usually means all must act in concert - one of the reasons I recommend against multiple agents. However, if you can't agree, then you need to either submit the issue to mediation and agree to be bound by the mediator's decision, or you go to court for emergency relief. Is Mom so totally out of it that she can't make her own decisions?
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    Ronald A. , Elder Law Attorney answers:
    a conservatorship may be your only answer.

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    My mother gave me power of attorney over her bank checking account. If she dies first, must I immediately pay taxes on the inherited bank account. We both live in Pennsylvania.
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    John N. , Elder Law Attorney answers:
    The bank account becomes an estate asset thatis ultimately distributed according to the terms of the will. Inheritance becomes due on the ninth month anniversary of death. Consult an attorney for answers to specific questions.
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    Jeff L. , Elder Law Attorney answers:
    It is important to be clear as to whether you are the agent under a power of attorney rather than a joint owner of the account. If you are an agent, your power to sign checks ceases at your mother's death, and that account is part of her probate estate. Your mother should consult with an attorney to determine the best way to handle her bank accounts for purposes of current assistance with finances and for inheritance upon her death.

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    My mother has dementia and gave power of attorney to my oldest sister five years ago. My two older sisters and I all have our names on her bank accounts. In December of 2012, the IRS froze one of my mom's accounts and took $65,000 to pay my oldest sister (agent) and her husband's back taxes. My oldest sister keeps telling us she will pay mom back when she sells her house in California. My other sister feel this is a breach of fiduciary duty. What can we do do to revoke my oldest sister's name as power of attorney and put my name or my other sister's name or both as POA?
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    Cindy H. , Nurse and Care Manager answers:
    It is best to engage an elder law attorney that specializes in estate planning and guardianship in the state where your mother resides. The durable power of attorney (for finances) must be reviewed as well as the names on the bank accounts.
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    Virginia L. , Elder Law Attorney answers:
    Guardianship. Call my office.
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    Robert F. , Elder Law Attorney answers:
    Would Mom understand signing a new Power of Attorney?

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    My father is married and both he and my step mom are elderly. My step mom isn't well. They just have decided to purchse a 300,000 townhome and are going to set it up so that her kids get everything if she dies. So, if she dies, he would have to move and probably be sent to a state nursng home and lose all of his assets. This is a really bad decision. Can my sister or I get a power of attorney for my dad? What should we do.?
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    Deborah S. , Nurse and Care Manager answers:
    There are a few different types of Power of Attorney. They are Power of Attorney for Health and Power of Attorney for Property. If your Dad is cognitively competent to make his own decisions, you can not get either of these unless he names you as an his agent by completing the legal documents. If he does that, your authority to act as his agent only goes into effect if he becomes unable to speak for himself because of illness, accident, etc. To get this authority despite his refusal, you would have to pursue guardianship which requires formal proof that he is incompetent.
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    Jerome L. , answers:
    you cannot get a power of attorney if your if your father refuses to sign sugest you get an attorney to represent your father so as to protects his rights suggest you call us and talk to an attorney representing thousand of seniors
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    John K. , Elder Law Attorney answers:
    The short answer is that you cannot get a power of attorney unless your father agrees. If the decision involves your father's money and he is no longer able to make sound decisions your only alternative is to establish that he is disabled and they aget appointed as his guardian. This is particularly difficult because you will need a physician's report completed that establishes his disablity. You will need an attorney experienced in elder law.

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    I have power of attorney (POA) over my aging parents? So is a living will necessary if I know their desires? Is there something else to the living will that I am missing?
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    Stephen D. , Elder Law Attorney answers:
    Generally speaking when a person does a poa, it covers only financial affairs. Medical decision making falls under the description of Advance Directives, which are documents which either appoint a person to act for you in medical decision making (generally called a medical power of attorney or the like), which may also contain other information one wishes to have considered at the time a decision is necessary or you make a statement of what you would like (generally known as a living will). The financial power of attorney will not apply. But, States often have medical consent laws. For example, in Georgia a spouse can speak for their spouse's medical condition. (On the contrary, a spouse may not speak for a spouse on financial matters.)

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    My mother put away money for me in her estate. How can I find out where the money is located in her estate? I am sick and need the money.
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    Laurent M. , Elder Law Attorney answers:
    Start at the Surrogate's Office in the county that your mom resided when she passed away. If she had a Will and the Will was probated you can obtain the contact information for her Executor. Then contact the Executor for information. If mom did not have a Will check with the Surrogate's Office to see if an application for the appointment of an Administrator has been filed. If yes get the contact information for the applicant and proceed as above.
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    Denise V. , Geriatric Care Manager answers:
    Do you know if your mother had an attorney draw up her estate will?? Do you have their name?? More information is needed to help guide you down the right path. Is your mother's estate being probated?? DMV
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    Robert S. , Elder Law Attorney answers:
    I need more clarity. Is your mother deceased? Was the estate opened? If so the personal representative (executor or administrator) can contact the IRS to see if the IRS received a 1099 from a financial institution showing where funds exist.
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    William I. , Elder Law Attorney answers:
    Assumption is made that your mother died in New Jersey. If your mother had a will, someone needs to take it to the County Surrogate, along with her death certificate, and submit it for probate. It will then be the responsibility of the person named as executor or executrix in the will to gather your Mom's assets and make distribution in accordance with the will, after all relevant taxes and bills are paid. If your mother died without a will, then some responsible person needs to go to the County Surrogate and seek appointment as administrator of her estate. Administrator has same responsibilities as executor. If your mother died elsewhere than in New Jersey, the procedures may be different, and you should contact a knowledgeable person such as an attorney in the State where she died.

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    I know of a person with MS, dementia, a broken hip, bed sores and a Staph. infection. She is in rehab but is showing no progress. Her husband has POA. And he states that he noticed her memory problems 6 months ago. The POA, however, was signed only 10 months ago. I noticed her cognitive problems 10 months ago. I am wondering if the POA is still valid?
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    Nancy B. , Elder Law Attorney answers:
    Yes, the power of attorney is still valid. The fact that someone exhibited signs of dementia at the time that it was drawn up does not mean that they could not carry on an intelligent conversation, know who they were and other details. Now that you have the document, it should be retained for use for the purposes for which it was drawn up, ie., to handle her financial affairs.
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    William B. , Elder Law Attorney answers:
    Legally speaking, the POA enjoys a presumption of validity. If an attorney prepared it, it's unlikely the attorney thought she lacked the capacity to understand it when it was signed. However, the fact remains that if there's a question about the document's validity, the only way to know for sure is to submit the issue to the court for a determination. Scott's response that a person with early signs of dementia can sign a POA is correct. Generally, you need more capacity to sign a POA than a will, but having some memory deficits, for example, isn't fatal to having a valid document. Sometimes a doctor can offer an opinion about the person's capacity when the document was signed, but unless an examination was done very close in time to the signing of the document, the court may not put much weight on the doctor's opinion. That's because people have good days and bad days. Hopefully, this POA was signed on a good day.
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    Scott M. , Elder Law Attorney answers:
    You likely can assume that it is valid. Just because somebody has dementia does not mean they have legal capacity to execute a valid POA. People can have memory issues and yet still have capacity to decide that they want their spouse to be their POA. In reality, third parties are not going to be aware of the wife's issues - and they'll likely honor the POA if it's otherwise a valid document.

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    My Mother created a power of attorney document with her attorney some years ago. There are clauses in this document, that allow for the document to go into effect when certain circumstances are met. I am wondering if this document is just as relevant in the state of Arizona as it is in the state of California. I worry about this, right now, because my mom is going to the hospital for a bowel surgery.
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    Patsy S. , Elder Law Attorney answers:
    The general rule is that if a legal document is validly executed, it is valid in any state.

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    My siblings and I never managed to get a power of attorney for our dementia-stricken mom. We live at a distance from her (Cali and NY). Would it be possible for a family friend to serve as a guardian? Would someone appointed by the court or an attorney be a better choice for the guardian?
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    Michael S. , Elder Law Attorney answers:
    Actually the statute provides for the order in which a person can be appointed. It allows for family members then private fiduciaries.
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    Dale T. , Elder Law Attorney answers:
    The simple answer is yes a family friend can serve as a guardian. The best choice for the choice of guardian would be determined from a collection of facts. Obvious a family member or a friend would not cost as much as an attorney or a court appointed person. Also a family member and a family friend would know the person better so in making decisions they would use that knowledge to the advantage of the ward. I would still consider one of you serving. The distance between you and your mom is an issue but it is not necessarily a controlling one.
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    James S. , Elder Law Attorney answers:
    That is a difficult question to answer. A friend can serve as guardian if the family agrees, however it can be a fair amount of work. If there is sufficient funds I would recommend either one of you being the guardian but hiring a Care Management Company to oversee your mother's daily needs. If there is no dispute among the siblings, then one could act and would only have to appear in Court infrequently as the attorney could handle most of those issues. In the alternative a professional service could be hired to act as her guardian.
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    Elliot S. , Elder Law Attorney answers:
    There are 2 types of guardians. One deals with financial issues and another deals with medical and daily physical issues. Call me to discuss the situation in greater detail.
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    Linda V. , Elder Law Attorney answers:
    The Court will determine who is the best guardian to act in your mother's best interests
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    Sonya M. , Elder Law Attorney answers:
    That you live at a distance would not neccesarily preclude seving, and yes any one can serve. So the friend would be fine depends on how you define "better". But if it were my parent, I would not want someone appointed by the court. Of course, depends on her needs and which type of guardian. For property an "expert" could be better. For personal the friend is probably better.

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    My sister's mother-in-law is moving into an assisted living facility. We are not sure if it is going to be permanent or temporary. Should we be getting a power of attorney at this point to keep her household running in her absence?
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    Cheryl A A. , Nurse and Care Manager answers:
    This is a great question. Power of attorney questions arise all the time, sometimes when it is too late to make decisions. The simple answer is not usually related to where the person is living, but what is their health like? The other question is - are you referring to legal power of attorney only, which gives the person the ability to conduct financial transactions (which is what it appears). On the other hand, I would then ask - who has medical power of attorney? There are different ways of setting up both legal/financial power of attorney as well as medical - you really need to consult an attorney, hopefully one who specializes in elder law. At the same time, a confidentiality or HIPAA document is done, so that everyone is aware of who can, or cannot access confidential information. Along with these issues, there needs to be long term planning for the costs of care, as assisted living is not covered by health insurance (of any type). A good way to think of this is: What if this person could not speak for themselves as a result of an injury or illness? Who can pay the bills? Who can make the health care decisions for them, based on what the person needing care would desire? The key is planning ahead, having the discussions, because you never know what will happen, no matter where someone lives, or even how old they are.
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    Thomas F. , Elder Law Attorney answers:
    Yes you should get a very comprehensive Power of Attorney in case a health issue in the future might prevent you from getting a comprehensive power of attorney at that time when you really need one to be able to help her.
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    Gina G. , Elder Law Attorney answers:
    Absolutely. Also, it is important that an elder law attorney review her estate plan, her assets and determine the best plan to pay for her costs at the assisted living facility, as well as, long term care planning for her. Long term care planning involves insuring medicaid eligibility in case that becomes necessary and asset protection from paying the costs of long-term care.
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    Leigh H. , Elder Law Attorney answers:
    It would be a very good idea to get a power of attorney. Make sure it is drawn up by an attorney and lists powers to deal with social security and medicaid. Also, you might want to look into a living trust.
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    Stephen L. , Elder Law Attorney answers:
    Yes.....the power of attorney should be executed by the mother in law while she is competent to sign the document.....You will want to get a Financial durable power of attorney for finances and antoher Medicial power of attonrey for medical decisions.....

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    Do I get power of attorney on my parents estate if they are not willing to give it to me? My parents are in thier late age and are in poor health. They are also ruining the finances of all the business they own, we are talking about many millions of dollars in the estate. They are mentally depressed and always saying they want to die,(every day they tell me this ). They do not, however, want me to take over the business. Can I force their hand and get power of attorney without their permission? I would do this only for the best of everyone's future.
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    Susan L E. , Geriatric Care Manager answers:
    The best person to answer the question of POA on your parents estate, is an Elder Law Attorney. They have a website NELA. There are many well known, reputable Elder Law Attorneys in New York City and Brooklyn. I do not think you can force their hand with out them being declared legally incompetent, and your being named their guardian. This is a very long process. I again urge you to speak to a Elder Law attorney. You state they are "mentally depressed and that they want to die. However, their desire to die is not strong enough if they not willing to give up their business. It might be quite difficult, but it sounds as though their mood shoud be evaluated. A Social Worker can do this. However, if they would benefit from medication, they would need to see a specialist.
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    Karen M. , Nurse and Care Manager answers:
    You will need to have your parents evaluated for competency by a psychiatrist. If they are deemed competent, they have the legal right to make bad decisions. if they are considered incompetent, you can pursue guardianship. The most important thing of course is that they are safe and do not pose a danger to themselves or others.
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    Ely J. R. , Elder Law Attorney answers:
    There is no possible way for you to obtain a power of attorney over your parents' financial situation without their willingness to appoint you to that role. You cannot do so against their wishes. The only thing that is available is a guardianship action which requires a legal proceeding, is extremely expensive, and would probably be contested. Our firm has had great success in helping to pave the way to power of attorney appointments in scenarios like yours, by reaching out to everyone involved.
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    Miriam A. , Geriatric Care Manager answers:
    Power of Attorney would have to be given voluntarily by individuals who have the legal capacity to do this. If there is diminished capacity (and this would have to be determined by professional asessment and legal proceedings), it could be possible to get control of the situation via guardianship proceedings. The best first step would be to sit down with a geriatric care manager to discuss the possible scenarios.
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    Sonya M. , Elder Law Attorney answers:
    No you cannot "get" a power of attorney, one must be given. If your parents truely lack decison making capacity, then you can apply for a guardianship of either person or property or both. If it is just a question of what you consider "bad" decisons, sorry we all, no matter our age, have the right to make "bad" decisions.
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    Rita G. , Geriatric Care Manager answers:
    While this is a common situation, it is nevertheless upsetting to all family members. In my experience, asking them for their thoughts about the future of their estate may be a beginning. Do they have any thoughts about the future of their estate and business? Calling in a trusted friend, family member, or professional Geriatric Care Manager may facilitate this discussion. A professional may additionally assess your parents capacity to make these decisions as well as facilitate a family meeting.
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    Joan R. , Elder Law Attorney answers:
    A Power of Attorney is a document that must be freely given by someone with capacity. If someone is incapacitated, i.e., likely to suffer harm because he or she is unable to manage her finances or make reasoned personal decisions then a court may appoint a guardian of the person and/or of the property for an incapacitated person. Their mismanaging their business could be reason to seek guardianship, but you would be bringing them to court to say that they are incapacitated. This may have a permanent detrimental effect on your relationship. Perhaps enlisting the aid of someone else to approach them might be a way to begin a conversation with them?
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    Arleen S. , Geriatric Care Manager answers:
    This is unfortunately not such an unusual situation. I have found one way to go is to think of someone your parents trust and will listen to. For some families this is their physician. With a family I recently helped, it was the lawyer brother-in-law. He literally sat with my client and said,"You need to do this." If there isn't someone that can fairly easily be found, I recommend bringing in a Geriatric Care Manager. Perhaps that person can help get treatment for your parent's depression, or help all of you call a family meeting and let them know they are risking everyone's future. Perhaps if they hear this clearly from everyone in a measured way, they will respond. Good luck.
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    Tracy R. , Elder Law Attorney answers:
    You can not get a POA against someone's wishes. If they are incapacitated, you can do a Guardianship
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    Lisa B. , Elder Law Attorney answers:
    You cannot force anyone to give you power of attorney. If capacity is an issue this is a matter for the courts. You may want to bring in an objective third party such as a geriatric care manager to help your family understand the issues/options.
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    Penelope M. , Elder Law Attorney answers:
    You can force anyone to "give" a power of attorney. If they are unwilling and not capable of managing their affairs, only the appointment through the Supreme Court of a guardian will allow you to step in.
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    Mark Z. , Geriatric Care Manager answers:
    Sorry but this requires court involvement. Likely guardianship or conservatorship.
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    Stephen S. , Elder Law Attorney answers:
    You cannot force anyone to give you a POA. Your only recourse would be to commence a guardianship action alleging that your parents do not understand and cannot adequately handle their own affairs.
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    Benjamin E. , Elder Law Attorney answers:
    Power of Attorney must be with their permission as they are granting you the authority to act on their behalf. Alternatively, court intervention through conservatorship or guardianship may make sense under these facts.
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    Elliot S. , Elder Law Attorney answers:
    You cannot force someone to give you a POA. You can bring a guardianship proceeding which may accomplish your goal.
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    Elizabeth E. , Elder Law Attorney answers:
    Your parents have the right to run their business imprudently and to mismanage their business should they so elect. You do not have the right to demand a power of attorney from them simply because they are aged or infirm. However it appears from some of the facts, that your parents may be exhibiting signs that they no longer have the legal capacity to manage their personal and business affairs and, if so, you might be able to achieve management of person (health care decisions) and property (financial affairs) if a guardianship process is initiated, and 2 physicians, the attorney appointed by the court to represent your parents, and ultimately the court, all agree that they lack capacity.
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    Richard M. , Elder Law Attorney answers:
    Feel free to reach out to me to discuss.

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    My parents don’t have a power of attorney. Should I be the POA and how do I do that?
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    Sonya M. , Elder Law Attorney answers:
    You cannot do that. They must sign one and whether or not they should, or whetherr you should be selected is not something I can answer without knowing more information.
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    David T. , Financial Planner answers:
    You can be the POA if your parents are willing to give it to you. The POA form has to be signed by both the princial and the agent(s) in front of a notary. My office would be more than happy to provide you with one.

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