What is the name of your state (only U.S. law)? VA
My parents have Durable Powers of Attorney in which they list each other as their attorneys-in-fact. There is a springing clause in each DPoA for incapacity,and it gives each the sole power to declare the other incapacitated. The wording goes something like "the attorney-in-fact, exercising sole judgment, shall certify such incapacity in a written affidavit."
What form would such an affidavit take? Is it just a letter? Does it need to be witnessed, notarized, or recorded?
From what I have read, it is common to require certification by two independent physicians to declare someone physically or mentally incapacitated. Has anyone seen a springing clause similar to my parents'?
One of my siblings is named in the DPoA as the successor attorney-in-fact for both my mother and my father. The successor attorney-in-fact also has the ability to certify either of them unable to serve in their roles as attorney-in-fact.
The document states, "...the inability of any attorney-in-fact to serve further in such capacity under this Durable General Power of Attorney for any reason may be determined by the other then acting attorney(s)-in-fact, but if there are none, by such infirm attorney-in-fact's successor(s) provided for herein, exercising sole judgment, who shall certify such inability to serve and the reason(s) therefore in a written affidavit."
Legally, what would count as an inability to serve? Is "inability" the same as "incapacity"? Are there accepted categories of inability, or does the wording of the DPoA ("inability to serve...for any reason") allow for anything to be used as the reason?
Basically, one of my parents in mentally incapacitated and the other is committing elder abuse (negligence and financial exploitation). The financial exploitation is made possible, or at least facilitated, by the power-of-attorney. We would like to help our parent who is the victim of abuse but would prefer to take over through the DPoA rather than turning our other parent over to the authorities and going to court to gain guardianship. (That is not to say that we wouldn't turn in our parent after my sibling got power of attorney).
If my sibling did certify the abusive parent as unable to serve as the other's attorney-in-fact, and that parent wanted to contest their removal, what would be their legal recourse, if any?What is the name of your state (only U.S. law)?
My parents have Durable Powers of Attorney in which they list each other as their attorneys-in-fact. There is a springing clause in each DPoA for incapacity,and it gives each the sole power to declare the other incapacitated. The wording goes something like "the attorney-in-fact, exercising sole judgment, shall certify such incapacity in a written affidavit."
What form would such an affidavit take? Is it just a letter? Does it need to be witnessed, notarized, or recorded?
From what I have read, it is common to require certification by two independent physicians to declare someone physically or mentally incapacitated. Has anyone seen a springing clause similar to my parents'?
One of my siblings is named in the DPoA as the successor attorney-in-fact for both my mother and my father. The successor attorney-in-fact also has the ability to certify either of them unable to serve in their roles as attorney-in-fact.
The document states, "...the inability of any attorney-in-fact to serve further in such capacity under this Durable General Power of Attorney for any reason may be determined by the other then acting attorney(s)-in-fact, but if there are none, by such infirm attorney-in-fact's successor(s) provided for herein, exercising sole judgment, who shall certify such inability to serve and the reason(s) therefore in a written affidavit."
Legally, what would count as an inability to serve? Is "inability" the same as "incapacity"? Are there accepted categories of inability, or does the wording of the DPoA ("inability to serve...for any reason") allow for anything to be used as the reason?
Basically, one of my parents in mentally incapacitated and the other is committing elder abuse (negligence and financial exploitation). The financial exploitation is made possible, or at least facilitated, by the power-of-attorney. We would like to help our parent who is the victim of abuse but would prefer to take over through the DPoA rather than turning our other parent over to the authorities and going to court to gain guardianship. (That is not to say that we wouldn't turn in our parent after my sibling got power of attorney).
If my sibling did certify the abusive parent as unable to serve as the other's attorney-in-fact, and that parent wanted to contest their removal, what would be their legal recourse, if any?What is the name of your state (only U.S. law)?