POA to take possession of Will

[ccLee]

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

Hey guys, take a breath. Thanks for all the advice about NOT wanting to comply with or defend a document that took twenty minutes to sign. That's EXACTLY what I am trying to avoid. (banks, brokerage firms AND) attorney are all refusing to honor legally prepared POA and are insisting upon add'l docs with current signature from the principal, whom is too frail to sign the NEW docs, but legally signed, notarized, and had witnessed by her attorney when prepared; and re-affirmed to the SAME attorney when the will was revised about one month ago. AND this same attorney told me to tell the banks and brokerage firms that they could be sued for failure to honor the POA and that by California law all legal costs incurred would be THEIR liability and I should take a handful. of the attorney's business cards and tell them to call the attorney! So if the POA is good enough to take action against banks and brokerage firms, WHY IS IT NOT GOOD ENOUGH for the attorney to honor???

 

[ccLee]

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

What are you implyimg ? Someone with a terminal illness can't update her will and then become to frail to sign her name within a few weeks?

 

[OHRoadwarrior]

Why are you in such a hurry to access the accounts of the medically disabled, before court oversight takes place? One could infer you were planning on making your self beneficiary to accounts that were intended to be estate assets.

 

[tranquility]

It is amazing you continue in the same vein. The attorney chooses not to give it to you without a minor inconvenience and you fight it. He has many reasons and no concern ethically, criminally and is unlikely to lose in court. That you choose to argue this over getting permission from your principal for a stated reason that is nonsensical evidences ill-intent.

You don't need the will. When the testator dies, call the attorney and inform him. He will make sure the will gets filed. Easy-peasy, problem solved with no drama.

By the way, I am partially in the business of being executor, trustee and other fiduciaries as well as advising others as such in their tax related issues. While pure tax is the main, about 20% of the gross comes from there. While I use many attorneys for advice, when I think there will be litigation over something, there are only a couple I use. They love litigation and are very good at it. Even though they would get extra money from litigating an issue, only once in all the years have we contemplated suing on this matter and that had to do with an incompetent person who had to get out of an investment quickly for a number of reasons. Once explained to the brokerage in a nice lawyer letter stating the damages if they ignored the statute, the problem went away.

 

[ccLee]

Why are you in such a hurry to access the accounts of the medically disabled, before court oversight takes place? One could infer you were planning on making your self beneficiary to accounts that were intended to be estate assets.

My mother has been in and out of the hospital for the past several months. When discharged from her most recent hospital stay it was to a comfort care facility with hospice service. She was told by doctors her prognosis is dire and there isn’t really anything they can do but try and keep her as comfortable as possible.
She cannot even pay her bills. After arriving at the Comfort Care facility, she asked me to handle ”everything” (except for her Health decisions) for her. All her children whom are beneficiaries are aware and accept Mom’s decisions naming me, long ago. power of attorney and naming me, somewhat recently, as executor in the will, after the passing of her late husband .
Besides attempting to get banks and brokerage firms to honor the POA so I can start paying her bills and keep them current, I do not want to wait for her to die and then wait longer for me to be appointed as executor, nor do I want to have to wait for some kind of guardianship or conservatorship be established . Isn’t that the purpose of naming a Power of Attorney, in the first place?
I have found unprepared claim forms for life Insurance benefit s as beneficiary of her late husband. For all I know there is a time limit to file a claim, but there is no good reason to wait for this to be followed up by me. I also saw she had a lot of legal forms, letters, court docs etc. I also her new will had recently been prepared, so I asked her attorney for the will and for copies and info about some of her other legal matters that might need to be attended to and that I should be knowlegeable about in case I might have to follow up thereon. Would you have me just sit and wait rather than to gather all her bills, contracts, legal documents etc., especially because someone might infer something that they have no factual basis thereof?
It seems many are concerned about the POA taking advantage of the situation, but if the client gives the POA, I think the attorney should comply with it. I think its not the attorneys job to insist I prove I am not taking advantage of the situation. I think the attorney knows fully well my Mom wants me to conduct all her business, Why does the attorney wants confirmation the POA hasn’t been revoked (for which there is absolutely no basis for such concern), in order for the attorney to honor it on the legal firm’s behalf, yet the very same attorney, in the very same phone call told me to get a handful of their business cards, give them to all the people I gave the POA to and have them call the legal firm if they do not intend to honor the POA.I was also told those entities not complying with the POA could be sued and held liable for all the legal costs incurred to have the POA enforced. (One might confer something entirely else after hearing that conversation.)
So are you saying its ok for the attorney to insist on compliance with the POA for others, while simultaneously insisting the legal firm won’t comply with it themselves?
And are you saying there is no need to hurry to begin the process of paying bills, gathering records and documents etc, together and to begin getting her affairs in order and up to date and in a timely fashion?
I say why wait, I wasn’t give POA, and then asked to start taking care of all her affairs, so that I would/should do nothing until I become executor at even a later date.

 

[I'mTheFather]

If your concern is having the POA honored so you can get her affairs in order, then have you gotten that handful of business cards to help you in that regard?

 

[ccLee]

It is amazing you continue in the same vein. The attorney chooses not to give it to you without a minor inconvenience and you fight it. He has many reasons and no concern ethically, criminally and is unlikely to lose in court. That you choose to argue this over getting permission from your principal for a stated reason that is nonsensical evidences ill-intent.

You don't need the will. When the testator dies, call the attorney and inform him. He will make sure the will gets filed. Easy-peasy, problem solved with no drama.

By the way, I am partially in the business of being executor, trustee and other fiduciaries as well as advising others as such in their tax related issues. While pure tax is the main, about 20% of the gross comes from there. While I use many attorneys for advice, when I think there will be litigation over something, there are only a couple I use. They love litigation and are very good at it. Even though they would get extra money from litigating an issue, only once in all the years have we contemplated suing on this matter and that had to do with an incompetent person who had to get out of an investment quickly for a number of reasons. Once explained to the brokerage in a nice lawyer letter stating the damages if they ignored the statute, the problem went away.

xxxxx
I have a valid POA, the attorney knows it has NOT been revoked. My mother is too frail to sign a letter re-affirming (again) the POA is STILL in effect (I do not consider her being unable to sign her name a "minor" inconvenience). What good is a POA if the attorney can refuse to honor it, and if as you claim has no concern ethicly to honor it? On what basis does this evidence ill-intent on my part? I just want the attorney to honor the POA that they have NO basis to conclude it is no longer in effect.

Thanks for your comment/suggestion about re-vsiting with the brokersge firm.
xxx

 

[anteater]

As was said way upstream in this thread, take the attorney to court. The same as you would do with a financial institution that refuses to honor the POA.

 

[OHRoadwarrior]

No, your job as POA is not to start performing your function as executor. That is why you are meeting resistance. Your job as executor is to perform those functions after mom dies. It appears you clearly understand the distinction. however, you have problems with the power to execute.

 

[tranquility]

xxxxx
I have a valid POA, the attorney knows it has NOT been revoked. My mother is too frail to sign a letter re-affirming (again) the POA is STILL in effect (I do not consider her being unable to sign her name a "minor" inconvenience). What good is a POA if the attorney can refuse to honor it, and if as you claim has no concern ethicly to honor it? On what basis does this evidence ill-intent on my part? I just want the attorney to honor the POA that they have NO basis to conclude it is no longer in effect.

Thanks for your comment/suggestion about re-vsiting with the brokersge firm.
xxx

It is minor. Get over it. Take him to court as anteater said. Don't use the principal's money, as that will clearly be a breach of your fiduciary duties. I wouldn't use your money as that may convince the court you have motivations beyond the principal's benefit, as that would indicate a breach of your fiduciary duties. if you can't get someone to take it on contingency forget it. Goodness sakes alive, if you are thinking of something pro per here, DON'T!!!! Well, unless you are judgment proof.

Your continuance to try to enforce the statute makes me think you would have little chance in court.

 

[OHRoadwarrior]

As tranq noted, you are violating your POA by using moms money to chase a document you do not need to perform an act in her best interests. If you spend your own, it will cast serious credibility issues on your motive. Similar, I might add, to the ones we have about your motives.

 

[justalayman]

One thing I did not see mentioned:

if the principal has directed the attorney to retain the original copy of the will and to provide it to whomever eventually is appointed executor, the attorney not only has no obligation to turn it over to the OP but would be derelict in their duties and obligations to their client if they did so. Maybe the principal gave the attorney just such instructions.




ccLee; just because you are nominated as exec, it does not mean you will become exec. The court will have to qualify you prior to appointing you.

as to your POA: it allows you to act on behalf of the principal. The actions you are taking are not doing anything for the principal. Unless you have a need for any particular document, you have no right to demand it be given to you. In other words; it is really none of your business.

 

[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?

In what court would someone file a motion or tell a judge "In theory, there is a statutory requirement a valid POA is followed. In theory."

If there is NO evidence a POA has been revoked (Regardless of the fact it has NOT been revoked nor has there ever been any mention of desiring to have it revoked), is there not a staturtory requirement in law (not in theory) a valid POA be followed?

Just because one states, "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?", is it neverythe less a valid POA unless/until porven not to be valid?

 

[tranquility]

In what court would someone file a motion or tell a judge "In theory, there is a statutory requirement a valid POA is followed. In theory."

If there is NO evidence a POA has been revoked (Regardless of the fact it has NOT been revoked nor has there ever been any mention of desiring to have it revoked), is there not a staturtory requirement in law (not in theory) a valid POA be followed?

Just because one states, "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?", is it neverythe less a valid POA unless/until porven not to be valid?

I refuse to continue as it is clear you are up to no good purpose. Get an attorney and have him advise. Expect he will also focus on your legal duties and responsibilities rather than your and not your principal's wants.

Frankly, you will need to come up with a better story. While either attorney (The will holder or the one you will need to use to sue.), may not be a mandatory reporter, they could certainly report you for suspected elder abuse. That will result in an investigation. I hope you do have nothing but genuine motives here. If not, you may have forced an issue too far.

And, as I said, YOU can't do anything here but hire an attorney for the principal. You have no rights to sue on. Since you are not an attorney, you cannot represent the principal in court.