POA to take possession of Will

[ccLee]

In California, can an attorney insist to see, talk to, or obtain a signed note from the principal before complying with requests from the Power of Attorney therby delaying the handing-over of the original Will to the POA? This is the same attorney whom prepared the POA on behalf of the client a few years ago and the same attorney that within the past month updated the will, which named the same person to be executor of the will (and the POA was not updated at that time).

 

[tranquility]

In California, can an attorney insist to see, talk to, or obtain a signed note from the principal before complying with requests from the Power of Attorney therby delaying the handing-over of the original Will to the POA? This is the same attorney whom prepared the POA on behalf of the client a few years ago and the same attorney that within the past month updated the will, which named the same person to be executor of the will (and the POA was not updated at that time).

In theory, there is a statutory requirement a valid POA is followed. In theory. No one sues on the matter and any good attorney or other professional will do due diligence to see if the POA is valid. Especially when the POA was a few years ago, what is the harm? Why would this even be an issue?

 

[OHRoadwarrior]

Consult the terms of your POA.

 

[ccLee]

In theory, there is a statutory requirement a valid POA is followed. In theory. No one sues on the matter and any good attorney or other professional will do due diligence to see if the POA is valid. Especially when the POA was a few years ago, what is the harm? Why would this even be an issue?

The problem is that the principal is in hospice care, sleeps for hours at a ti,e throughout the day, is terminally ill, and too weak to sign her name on documents. (Last documnet she signed, literally took twenty minutes, now she needs help holding cup to her mouth).

 

[OHRoadwarrior]

The lawyer might be concerned the will is going to disappear. I suggest you request a copy and leave the original until it is time to file with the court.

 

[ccLee]

Consult the terms of your POA.

POA was effective for years but POA didn't act upon it because until principal asked him to do so. And again same attorney whom prepared POA years ago updated will within last month but DID NOT see the need to update POA, and POA ids amme as executor named in recent updated will.

 

[OHRoadwarrior]

The terms of the POA might not grant you the ability to take possession of the will.

 

[tranquility]

The problem is that the principal is in hospice care, sleeps for hours at a ti,e throughout the day, is terminally ill, and too weak to sign her name on documents. (Last documnet she signed, literally took twenty minutes, now she needs help holding cup to her mouth).

I can see why you are not getting what you want, the issue is; what is the problem? What is being harmed here? What is your eventual goal? (Other than getting the original in your hands.)

 

[ccLee]

The terms of the POA might not grant you the ability to take possession of the will.

The uniform statutory California POA notarized form indicates 'All of the above powers" are granted (but I already learned several banks and brokerage firms balk at accepting the POA). As POA and perhaps (too soon) executor, I would like to gather all legal documents at one location (where I am also gathering all records of assets, liabilities, and outstanding expenses and contracts, etc.

Thanks for your comments. I just think that (the banks and brokerages too) the attorney is deliberating delaying providing the documents, I don't know why, and I don't see any good reason for it.

But my primary question relates to Can I demand, and must the attorney comply, in a timely manner, to hand over that document without insisting on something (anything) more than my request as POA ?

 

[tranquility]

The uniform statutory California POA notarized form indicates 'All of the above powers" are granted (but I already learned several banks and brokerage firms balk at accepting the POA). As POA and perhaps (too soon) executor, I would like to gather all legal documents at one location (where I am also gathering all records of assets, liabilities, and outstanding expenses and contracts, etc.

Thanks for your comments. I just think that (the banks and brokerages too) the attorney is deliberating delaying providing the documents, I don't know why, and I don't see any good reason for it.

But my primary question relates to Can I demand, and must the attorney comply, in a timely manner, to hand over that document without insisting on something (anything) more than my request as POA ?

You can "demand" all you want, but you would have to sue the attorney to force him to turn it over under the statute. It will take a lot of money and a lot of time. If you have the principal pay the money, you would be in breach of your fiduciary duties because your reasons are not sufficient for this such an expenditure. Why you can't get a signature, even if it takes twenty minutes for him to sign, is beyond me. The attorney has a right to be suspicious under such circumstances.

 

[ccLee]

I can see why you are not getting what you want, the issue is; what is the problem? What is being harmed here? What is your eventual goal? (Other than getting the original in your hands.)

Yes my eventual goal (specificlly related tp this question) is to get the original will. I am 3,000 miles away from my home staying at my mother's home to try (as asked by her) to make sure her affairs are in order (as much as can be) before she passes. I suppose you could make the case that I am not being harmed by the delay, but I would disagree as I do not have endless time to spend on this (and other) matters.
[...Issues/matters are also apparently outstanding from this same attorney whom told my mother NOTHING was outstanding nor needed to be done. (Whole "nother" or three additional threads).]

I would ask how is the attorney being harmed by NOT delaying this, and NOT making me provide more, especially when there is absolutely no basis to conclude the POA might not still be in effect.

 

[LdiJ]

Yes my eventual goal (specificlly related tp this question) is to get the original will. I am 3,000 miles away from my home staying at my mother's home to try (as asked by her) to make sure her affairs are in order (as much as can be) before she passes. I suppose you could make the case that I am not being harmed by the delay, but I would disagree as I do not have endless time to spend on this (and other) matters.
[...Issues/matters are also apparently outstanding from this same attorney whom told my mother NOTHING was outstanding nor needed to be done. (Whole "nother" or three additional threads).]

I would ask how is the attorney being harmed by NOT delaying this, and NOT making me provide more, especially when there is absolutely no basis to conclude the POA might not still be in effect.

If your mother is in the condition you describe, how is it possible that her will got updated in the last 30 days?

 

[tranquility]

Why? Attorney client privilege. Doubt over the validity of the POA. A desire by and interested party to draw a line through the will to invalidate it. Lots of reasons.

Since you have no real reason to need the will, I suspect the courts will not give it to you. That here you wonder why without thinking of how your motives look, makes me agree.

Comply with the attorney's demand or forget it. Even if you take it to court, you might lose.

 

[OHRoadwarrior]

The problem is that the principal is in hospice care, sleeps for hours at a ti,e throughout the day, is terminally ill, and too weak to sign her name on documents. (Last documnet she signed, literally took twenty minutes, now she needs help holding cup to her mouth).

i would not want to be defending that document in court.

 

[ecmst12]

If your mother is in the condition you describe, how is it possible that her will got updated in the last 30 days?

A person can be terminally ill, weak, sick, close to death, yet still be of sound mind to make her own decisions.