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Health Care Power of Attorney

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AliceCooper

Junior Member
What is the name of your state? Illinois

My mother signed a healthcare power of attorney naming me as her POA. Due to circumstances and pressures exerted by family member, I assigned the POA to my brother. I retained the POA for finance. My mother is now in the advanced stages of Alzheimer's and unable to sign anything. My brother has been acting as her healthcare POA. She has been in a nursing home for about two years.
Questions are:
A. Is such an assignment legal?
B. Can the assignment be rescinded and returned to its original form?

Thank you.What is the name of your state? Illinois
 


fedann

Junior Member
fedann

I am not a lawyer, but my suggestion would be to look in the phone book under lawyers and find one that specializes in Elder Care. Most that I have contacted give a free consultation. Good luck.
 

AliceCooper

Junior Member
So are you saying that the whole POA from mother to me is void because the transfer is not legal? Why would an illegal transfer void the entire document and not just the transfer?
 

dmode101

Member
What is the name of your state? Illinois

My mother signed a healthcare power of attorney naming me as her POA. Due to circumstances and pressures exerted by family member, I assigned the POA to my brother. I retained the POA for finance. My mother is now in the advanced stages of Alzheimer's and unable to sign anything. My brother has been acting as her healthcare POA. She has been in a nursing home for about two years.
Questions are:
A. Is such an assignment legal?
B. Can the assignment be rescinded and returned to its original form?

Thank you.What is the name of your state? Illinois
Agent under power of attorney cannot give or assign the agency to someone else that was not appointed by the principal. Only the principal can grant the agency. However, did your mother name your brother as the successor agent to serve if you did not serve? Hard to see how your brother could have been acting as health care agent if he wasn't named as such in the document.
 

BelizeBreeze

Senior Member
Agent under power of attorney cannot give or assign the agency to someone else that was not appointed by the principal. Only the principal can grant the agency. However, did your mother name your brother as the successor agent to serve if you did not serve? Hard to see how your brother could have been acting as health care agent if he wasn't named as such in the document.
The only difference I take with your answer is the construction of Health Care POAs. They give no legal authority other than for medical decisions. There is no intrinsic legal authority outside of very specific stautory rights.

one of those rights NOT granted in a HCPOA is the ability to make decisions outside of the health care provisions of the grantor.

Therefore, absent specific language to the contrary, the brother's HCPOA is invalid and the original remains valid.
 

dmode101

Member
The only difference I take with your answer is the construction of Health Care POAs. They give no legal authority other than for medical decisions. There is no intrinsic legal authority outside of very specific stautory rights.

one of those rights NOT granted in a HCPOA is the ability to make decisions outside of the health care provisions of the grantor.

Therefore, absent specific language to the contrary, the brother's HCPOA is invalid and the original remains valid.
All I was talking about was health care decisions. I never mentioned anything otherwise. I agree with what you said, except that it's awkward to even say brother's HCPOA is invalid. A simply cannot give B any POA over C. Just makes no sense. I was just speculating that maybe mom's HCPOA named the brother as the successor and the poster simply resigned or declined to act so that brother stepped in.
 

AliceCooper

Junior Member
Health Care POA

Agent under power of attorney cannot give or assign the agency to someone else that was not appointed by the principal. Only the principal can grant the agency. However, did your mother name your brother as the successor agent to serve if you did not serve? Hard to see how your brother could have been acting as health care agent if he wasn't named as such in the document.

No, principal did not name assigned brother as successor. There was an argument between two brothers - one who was asked to act as successor and the other one who was not. One who was not stopped the one who was asked to act from signing as successor for whatever reason, resulting in there only being one agent (myself), no successor.
 
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tranquility

Senior Member
This is a weird situation. I agree with BB the "assignment" is invalid. I disagree with the possible effect. I believe IL statutes revoke the HCPOA if the revocation is in writing by either the principal or the POA. If the assignment was in writing by the OP (POA), that may revoke the HCPOA in its entirety--requiring a court to get a conservatorship over the principal.

However, the medical people are usually the hold-up in accepting a HCPOA and if everyone is fine with the situation, you may be able to continue with the current arraingement. It's not legal, but many things people do aren't legal.
 

AliceCooper

Junior Member
What does the original POA say about how it must be revoked?
Paragraph 5 is the only one that addresses successor agents as follows:

"If any agent named by me shall die, become incompetent, resign, refuse to accept the office of agent or be unavailable, I name the following (each to act alone and successively, in the order named) as successors to such agent:

{No Successor Named here}

"For the purposes of this paragraph 5, a person shall be considered to be incompetent if and whlie the person is a minor or an adjudicated incompetent or disabled person or the person is unable to give prompt and intelligent consideration in health care matters, as certified by a licensed physician."


Other than this, there is no reference to revocation.

Thanks for all your help!
 

BelizeBreeze

Senior Member
What does the original POA say about how it must be revoked?
Paragraph 5 is the only one that addresses successor agents as follows:

"If any agent named by me shall die, become incompetent, resign, refuse to accept the office of agent or be unavailable, I name the following (each to act alone and successively, in the order named) as successors to such agent:

{No Successor Named here}

"For the purposes of this paragraph 5, a person shall be considered to be incompetent if and whlie the person is a minor or an adjudicated incompetent or disabled person or the person is unable to give prompt and intelligent consideration in health care matters, as certified by a licensed physician."


Other than this, there is no reference to revocation.

Thanks for all your help!
Well that's your answer. You are, were and remain throughout the POA. Your brother never was and the healthcare provider should NOT have accepted your assignment as such.
 

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