IS Durable POA necessary?

[Bruinator]

What is the name of your state? Massachusetts

In my mom's will, it states that I am her "Personal Representative" which is the same as executor. Also in the will, it states that I am her Health Care Proxy. I am wondering if I need to get a Durable POA as well or if everything in her will takes care of all the necessary paper work that is legally binding agreement and is enforceable in a court of law.

If someone could let me know this information, I would greatly appreciate it.

TIA

 

[Taxing Matters]

Before I get to your particular question, it's important to understand that a will is simply a document that tells the estate personal representative (executor) who gets your stuff after you die. A will has no effect whatsoever until AFTER you die and the will is submitted for probate.

Also in the will, it states that I am her Health Care Proxy.

I'm guessing a lawyer didn't draft that will because designating a health care power of attorney (proxy) in a will is completely useless. You need that health care power of attorney to take effect while she's still alive so you can make decisions for her. Since a will only takes effect after she dies, putting in the will means it's too late to do any good.

I am wondering if I need to get a Durable POA as well or if everything in her will takes care of all the necessary paper work that is legally binding agreement and is enforceable in a court of law.

Now with what I've said about wills in mind you probably now already know the answer to this question: yes, you need durable medical power of attorney as a separate document from the will if your mother wants you to make medical decisions for her, especially should she become incompetent later on.

She really ought to consider having a lawyer review what she has already and draft whatever documents are needed to fix any mistakes that have been made.

 

[Bruinator]

Before I get to your particular question, it's important to understand that a will is simply a document that tells the estate personal representative (executor) who gets your stuff after you die. A will has no effect whatsoever until AFTER you die and the will is submitted for probate.



I'm guessing a lawyer didn't draft that will because designating a health care power of attorney (proxy) in a will is completely useless. You need that health care power of attorney to take effect while she's still alive so you can make decisions for her. Since a will only takes effect after she dies, putting in the will means it's too late to do any good.



Now with what I've said about wills in mind you probably now already know the answer to this question: yes, you need durable medical power of attorney as a separate document from the will if your mother wants you to make medical decisions for her, especially should she become incompetent later on.

She really ought to consider having a lawyer review what she has already and draft whatever documents are needed to fix any mistakes that have been made.

I'm guessing a lawyer didn't draft that will because designating a health care power of attorney (proxy) in a will is completely useless. You need that health care power of attorney to take effect while she's still alive so you can make decisions for her. Since a will only takes effect after she dies, putting in the will means it's too late to do any good.

Yes, a lawyer did prepare her will. Believe it or not, according to a friend of mine who works at a court house as a bailif, his father is a very good lawyer and the son who wrote the will, is very good as well.

As far as a Durable POA doument to be written, I plan on consulting a POA attorney.

 

[Zigner]

I suspect that you don't actually understand the documents that exist, or that you have not conveyed the information accurately here. In any case, as advised above, take all of the documents to a local attorney for review.

 

[Just Blue]

I'm guessing a lawyer didn't draft that will because designating a health care power of attorney (proxy) in a will is completely useless. You need that health care power of attorney to take effect while she's still alive so you can make decisions for her. Since a will only takes effect after she dies, putting in the will means it's too late to do any good.

Yes, a lawyer did prepare her will. Believe it or not, according to a friend of mine who works at a court house as a bailif, his father is a very good lawyer and the son who wrote the will, is very good as well.

As far as a Durable POA doument to be written, I plan on consulting a POA attorney.

Just a FYI: Taxing Matters is a site vetted attorney.

 

[Taxing Matters]

Yes, a lawyer did prepare her will. Believe it or not, according to a friend of mine who works at a court house as a bailif, his father is a very good lawyer and the son who wrote the will, is very good as well.

Well, something is clearly amiss, whether your understanding of the documents or whatever. The medical power of attorney and the will should be two separate documents since the will doesn't take effect until after death. There may have been a medical power of attorney combined in a living will in the documents you looked at. The name living will is a bit misleading because a living will is not really a will at all. It is a set of instructions for the type of medical care the person wishes to receive should she be unconscious or otherwise unable to convey her wishes to medical personnel at the time. For example, it might include a do not resuscitate instruction or instructions not to be put on life support in certain circumstances. In some states it is not unusual to combine a medical power of attorney with a living will.

But both those are quite distinct from the will that tells the personal representative how her assets are to be distributed after death. Moreover, it may be that a trust or other ways of transferring assets after death would be better for most of her assets than a will.

It's good that you'll have a lawyer look this stuff over and tell you what changes might be good for your mother to do.

 

[Bruinator]

Guys,

I believe these are 2 seperate documents. One being her Will and the other being her health care proxy as this is the lawyer responded in an email

"A quick glance makes you "Personal Representative" which is the same as executor. So when the time comes you can probate her Estate. There is also the Health Care Proxy where you can make medical decisions."

After seeing that, Would you advise still get a Durable Power of Attorney document from a Elder law attorney from Massachusetts or some other POA document please? Sorry for all the confusion. If you could let me know I would really appreciate it.

TYVM

 

[Zigner]

Guys,

I believe these are 2 seperate documents. One being her Will and the other being her health care proxy as this is the lawyer responded in an email

"A quick glance makes you "Personal Representative" which is the same as executor. So when the time comes you can probate her Estate. There is also the Health Care Proxy where you can make medical decisions."

After seeing that, Would you advise still get a Durable Power of Attorney document from a Elder law attorney from Massachusetts or some other POA document please? Sorry for all the confusion. If you could let me know I would really appreciate it.

TYVM

You REALLY need to discuss the matter with a local estate-planning professional.

 

[Bruinator]

ok. I will do so. TYVM.

 

[zddoodah]

In my mom's will, it states that I am her "Personal Representative" which is the same as executor.

I assume what it actually states that she nominates you to be personal representative of her estate (not of her) after she dies. Such a nomination has no legal significance as long as she is alive and legally competent.

Also in the will, it states that I am her Health Care Proxy. I am wondering if I need to get a Durable POA as well or if everything in her will takes care of all the necessary paper work that is legally binding agreement and is enforceable in a court of law.

Neither a will nor a health care proxy nor a DPOA is a "legally binding agreement." Whether your mother's will is or isn't sufficient for any particular purpose is obviously impossible for anyone who hasn't reviewed the document to determine. If she is concerned about the sufficiency of her will for any purpose, she should have it reviewed by a local attorney. If you have concerns, you can encourage her to do same. You could even hire an attorney yourself to review the will, but an attorney you hire couldn't do anything more than give you an opinion about the document.

I'm guessing a lawyer didn't draft that will because designating a health care power of attorney (proxy) in a will is completely useless.

I disagree. While it might not be a good idea, there's nothing that prevents the two documents from being combined.

I believe these are 2 seperate documents. One being her Will and the other being her health care proxy

This contradicts what you wrote in your original post. Have you actually seen these documents?

After seeing that, Would you advise still get a Durable Power of Attorney document from a Elder law attorney from Massachusetts or some other POA document please?

Please review the disclaimer at the bottom of the page as it pertains to advice. Also, no one here can competently give advice to your mother. As noted above, if your mother has concerns about her estate and end-of-life planning documents, she should consult with a local attorney.

 

[Bruinator]

I assume what it actually states that she nominates you to be personal representative of her estate (not of her) after she dies. Such a nomination has no legal significance as long as she is alive and legally competent.



Neither a will nor a health care proxy nor a DPOA is a "legally binding agreement." Whether your mother's will is or isn't sufficient for any particular purpose is obviously impossible for anyone who hasn't reviewed the document to determine. If she is concerned about the sufficiency of her will for any purpose, she should have it reviewed by a local attorney. If you have concerns, you can encourage her to do same. You could even hire an attorney yourself to review the will, but an attorney you hire couldn't do anything more than give you an opinion about the document.



I disagree. While it might not be a good idea, there's nothing that prevents the two documents from being combined.



This contradicts what you wrote in your original post. Have you actually seen these documents?



Please review the disclaimer at the bottom of the page as it pertains to advice. Also, no one here can competently give advice to your mother. As noted above, if your mother has concerns about her estate and end-of-life planning documents, she should consult with a local attorney.

Thx for the info and opinion. I plan on meeting with a lawyer who is an expert in the areas of Estate Planning, Probate an Trust Administration, Guardianships, Elder Law.