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resigning as poa

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jnkbell

Member
What is the name of your state (only U.S. law)?
California
My wifes parents are both in asst living. Her father is of sound mind yet physically can't manage affairs, and her mom is suffering serious dimentia. He wants us to manage all affairs.

Some of her financial investments are with banks that will not speak with us as long as he is poa. They've said he must resign as poa and assign my wife as poa of her affairs.

I've tried to locate a form for this yet am unsuccessful. Do you know where I can find the proper form, or if I was to draft a letter myself, to be notarized, what information the letter needs to contain, and how it should be worded?
 


anteater

Senior Member
I am confused.

Who holds power for whom right now?

And who is looking to grant the power to your wife for whose affairs?
 

garrula lingua

Senior Member
OP, you can't just do a new Power of Attorney - Mom is not capable of executing that PoA.
Did the PoA to Dad allow Dad to delegate his powers ?? I doubt it, but maybe it did.
Did Dad's PoA state an alternate representative if Dad could not serve or declined to serve ?

You may need a Guardianship/Conservatorship of the Estate on Mom, in order to allow your wife to take over management of Mom's financial affairs.

While Dad is capable, make sure that he completes a Power of Attorney Financial now, so you will not be looking at Guardianship/Conservatorship as an alternative if he needs help in the future.

Guardianships are very expensive; both to setup and to maintain. They usually require (at least) an annual accounting to the Court with receipts.

(PS: Mom and Dad should have a Will, possibly a trust (revocable or irrevocable if Medicaid at issue; check with an atty), a Power of Attorney Financial, a Power of Attorney Medical, an Advance Directive/Living Will, Burial Instructions and (ironically) a Declaration of Guardianship (Possibly a Do Not Resusitate, and for Texas residents, possibly a Right of Survivorship Statement recorded with the County Clerk).

Speak with an Elder Law Attorney. Call your local Bar Association and ask if there are attorneys who specialize in that field.
 

jnkbell

Member
OP, you can't just do a new Power of Attorney - Mom is not capable of executing that PoA.
Did the PoA to Dad allow Dad to delegate his powers ?? I doubt it, but maybe it did.
Did Dad's PoA state an alternate representative if Dad could not serve or declined to serve ?

You may need a Guardianship/Conservatorship of the Estate on Mom, in order to allow your wife to take over management of Mom's financial affairs.

While Dad is capable, make sure that he completes a Power of Attorney Financial now, so you will not be looking at Guardianship/Conservatorship as an alternative if he needs help in the future.

Guardianships are very expensive; both to setup and to maintain. They usually require (at least) an annual accounting to the Court with receipts.

(PS: Mom and Dad should have a Will, possibly a trust (revocable or irrevocable if Medicaid at issue; check with an atty), a Power of Attorney Financial, a Power of Attorney Medical, an Advance Directive/Living Will, Burial Instructions and (ironically) a Declaration of Guardianship (Possibly a Do Not Resusitate, and for Texas residents, possibly a Right of Survivorship Statement recorded with the County Clerk).

Speak with an Elder Law Attorney. Call your local Bar Association and ask if there are attorneys who specialize in that field.
I apologize, I should have given you more info.

They've have everything you mentioned in your ps. Living trust, poa's for finacial, Advanced directive for health care, will, etc. All list their daughter as the rep if they cannot themselves. And the trust/poa lists eachother as acting poa for the other. So right now he is her poa, yet cannot manage her finances.


It is his request to have his daughter manage everything, and in attempting doing so she was informed by one of her mom's investment banks that in order to deal with her, he must resign as her poa and give that power to his daughter. I've researched resigning as poa and all mentioned a form to fill out or drafting one yourself. I'm just trying to locate form or guidlines.
 
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Kiawah

Senior Member
The mother's POA document, is the controlling language. You need to read that language, to determine what the mother has indicated should happen for successors, if the father is no longer willing, or is unable to act as her POA.

It is unlikely, that the father has the right or authority, to designate someone else to be the mother's POA.

If the mother did not authorize any successor POA's in her originally documented POA, then guardianship would be the vehicle you need to pursue (as was previously mentioned), since she is no longer mentally capable of making a new POA.


Does the mother's POA, list the daughter has a successor POA, if the father is unable or unwilling?
 
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jnkbell

Member
The mother's POA document, is the controlling language. You need to read that language, to determine what the mother has indicated should happen for successors, if the father is no longer willing, or is unable to act as her POA.

It is unlikely, that the father has the right or authority, to designate someone else to be the mother's POA.

If the mother did not authorize any successor POA's in her originally documented POA, then guardianship would be the vehicle you need to pursue (as was previously mentioned), since she is no longer mentally capable of making a new POA.


Does the mother's POA, list the daughter has a successor POA, if the father is unable or unwilling?
yes it does. Husband is appointed, if he dies, resigns, is unable because of incapacity, or unwilling, she appoints her daughter...

I guess we're not trying to get her father to designate her mom's poa, as the poa already does, just to make sure his resignation is legal. He wants to resign to allow his daughter to act for them, just need the proper form...
 

Kiawah

Senior Member
Then you should be able to achieve pretty easily, what needs to be done.

I'll leave it up to the lawyers on the site, to specify whether your state needs a formal letter from the father, to be notarized and/or witnessed. I would only speculate that it might be the same requirements that governed the original POA initially.
 

garrula lingua

Senior Member
As Kiawah said, it's easy, but it better be right.

Dad, not you, has to go to an attorney. The financial institutions have to have proof that Dad is either incapable or declining to be her agent. The atty will draft a notarized affidavit for Dad to sign. That, coupled with the original PoA which states your wife is the successor agent, should work.

A smart attorney would probably call the specific financial institution and ask them what language they require. Some banks/brokerages use their own forms. Many banks do not like to deal with paperwork which gives the PoA to a second agent - Dad's election to decline as agent for Mom (or proof of his incapacity) will always have to be proven in order for your wife to use that PoA. See an attorney who will draft Dad's election not to be Mom's agent.
 
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