My father named my mother, then me as his attorney-in-facts in a financial power of attorney. Both my parents are now in care facilities and not competent. Am I automatically in charge or does something more need to be done?
That depends on the terms set forth in the document itself, but even if no stated triggers are mentioned before you can serve as alternate agent, like a doctor’s letter, I suggest you obtain a letter from her physician that your mother is unable to handle her own financial affairs and those of another. Then meet with a knowledgeable attorney and get an Affidavit prepared declaring the power of attorney your father signed naming you as attorney-in-fact is still in full force and effect. Further state that your mother is unable to serve because of her declining health and permanent admission to a nursing home or perhaps dementia, if that is her diagnosis, and you are now acting as your father’s duly appointed attorney-in-fact. Take the original letter and notarized Affidavit and the original of the power of attorney and have them recorded at the same county office where deeds are recorded. A similar procedure is used if the primary attorney-in-fact dies, only you’d use a certified copy of a death certificate instead of an original letter from a doctor with the Affidavit. A certified copy of what you just filed is presented every time you present the power of attorney.
Affidavits are reasonably priced and can be quickly prepared. Nearly all powers of attorney provide for reimbursement to the attorney-in-fact for reasonable expenses, therefore Dad’s money can be used to reimburse you for the legal fees and recording costs.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked disability, elder law, estate planning and probate law, not specific legal advice to a client. No attorney-client is created by reading this column.