Durable power of attorney question.

[amo1977]

Nebraska

So, my sister and I are both financial and medical power of attorney for our mother. Ill try to attach a copy to this thread. Im going to try and be unbiased, but sis and I aren't getting along really well. We view things differently. Her husbund is a pushy blowhard that influences her. Long story short, I don't trust them. In a perfect world with good communication both of us being able to do something is great. Then if one of us would die, then the other is still on the paperwork so we wouldn't have to redo it. What bugs me is the line "if one agent isn't willing to do it the other one can" or something along those lines. So I guess my question is, can one of us just go and do something without both agreeing and "singing off" on it? For example, if mom had some CD's that are supposed to go to say my sister, I could change that so it goes to me, or my bartender, etc without telling the other co-power of attorney? Mother and I have discussed this a wee bit. She's 91 and she's competent Id say, but short term memory could be better. So if something needs to be changed, it should be done sooner than later. For me to be comfortable, I think any business transaction done by a power of attorney should be signed by both power of attorneys. Which is a PITA, but I just don't trust her anymore and I think the feeling is mutual.

Well, I cant get my copy to attach here since its a PDF. It says "jointly and severally, my true and law full attorneys in fact, (hear in after referred to as agents) for me and in my name, to do any and all acts which I could do if personally present. If co-agent named above is unable or unwilling to act, the remaining co agents shall serve with all rights and responsibilities originally given to all co agents". I couldn't copy and paste that. So its typed. I left one sentence out of that. It wasn't very important. After that it just goes though different accounts that we can do things with. Bank accounts, insurance policies, etc.

 

[amo1977]

Nebraska

So, my sister and I are both financial and medical power of attorney for our mother. Ill try to attach a copy to this thread. Im going to try and be unbiased, but sis and I aren't getting along really well. We view things differently. Her husbund is a pushy blowhard that influences her. Long story short, I don't trust them. In a perfect world with good communication both of us being able to do something is great. Then if one of us would die, then the other is still on the paperwork so we wouldn't have to redo it. What bugs me is the line "if one agent isn't willing to do it the other one can" or something along those lines. So I guess my question is, can one of us just go and do something without both agreeing and "singing off" on it? For example, if mom had some CD's that are supposed to go to say my sister, I could change that so it goes to me, or my bartender, etc without telling the other co-power of attorney? Mother and I have discussed this a wee bit. She's 91 and she's competent Id say, but short term memory could be better. So if something needs to be changed, it should be done sooner than later. For me to be comfortable, I think any business transaction done by a power of attorney should be signed by both power of attorneys. Which is a PITA, but I just don't trust her anymore and I think the feeling is mutual.

Well, I cant get my copy to attach here since its a PDF. It says "jointly and severally, my true and law full attorneys in fact, (hear in after referred to as agents) for me and in my name, to do any and all acts which I could do if personally present. If co-agent named above is unable or unwilling to act, the remaining co agents shall serve with all rights and responsibilities originally given to all co agents". I couldn't copy and paste that. So its typed. I left one sentence out of that. It wasn't very important. After that it just goes though different accounts that we can do things with. Bank accounts, insurance policies, etc.

 

[quincy]

If you think that the language is confusing and open to more than one interpretation, the document can be (and should be) clarified so it is understood the same by everyone. You don’t want any ambiguity to cause problems if a dispute arises.

 

[zddoodah]

my sister and I are both financial and medical power of attorney for our mother.

A power of attorney is a document. You and your sister are agents or attorneys-in-fact. Is the POA already in effect, or does it only become effective upon the occurrence of some event (e.g., your mother becoming incompetent)? What is your mother's present physical and mental condition? Does your mother still make her own medical decisions and handle her finances?

What bugs me is the line "if one agent isn't willing to do it the other one can" or something along those lines. So I guess my question is, can one of us just go and do something without both agreeing and "singing off" on it?

Obviously, one would need to read the POA to answer this intelligently. However, the highlighted language suggests the answer to this question is yes. However, see my last comment below.

For example, if mom had some CD's that are supposed to go to say my sister, I could change that so it goes to me, or my bartender, etc without telling the other co-power of attorney?

This would be self-dealing. It's a big no-no and would be a great way to get yourself sued. In fact, the financial institution might not even allow it. Do you really have your own bartender?

For me to be comfortable, I think any business transaction done by a power of attorney should be signed by both [attorneys-in-fact].

That would certainly be the smart way to do things - especially for anything that benefits or is to the detriment of only one of the attorneys-in-fact.

It says "jointly and severally, my true and law full attorneys in fact, (hear in after referred to as agents) for me and in my name, to do any and all acts which I could do if personally present. If co-agent named above is unable or unwilling to act, the remaining co agents shall serve with all rights and responsibilities originally given to all co agents".

First of all, this is an incomplete sentence. Second, this is not the same thing as "'if one agent isn't willing to do it the other one can' or something along those lines." This means that, if one co-agent doesn't want to be attorney-in-fact, the remaining co-agent(s) will have the authority under the POA.

 

[amo1977]

A power of attorney is a document. You and your sister are agents or attorneys-in-fact. Is the POA already in effect, or does it only become effective upon the occurrence of some event (e.g., your mother becoming incompetent)? What is your mother's present physical and mental condition? Does your mother still make her own medical decisions and handle her finances?

I think its basically in effect. As I inturperit it, we can sign for her at anytime. She doesn't have to be deemed unable to conduct her own business. I've always advised her on things. She makes her own decisions. You explain things to her and she understands and can reason. She just is somewhat forgetfull, especially short term. Not much self confidence because she thinks she's more forgetfull that she really is. Yes, if something is needing to be done.....it needs to be done sooner than later.



Obviously, one would need to read the POA to answer this intelligently. However, the highlighted language suggests the answer to this question is yes. However, see my last comment below.

I was hoping to be able to attach the PDF. For what ever reason I cant even copy and paste it. Tried to type without typing a whole book. That is how I interpurtit it too. I was there when Mom had everything redone after dad died. Didn't change anything, just put a fresher date on it. I agree its poorly worded language IMHO.




This would be self-dealing. It's a big no-no and would be a great way to get yourself sued. In fact, the financial institution might not even allow it. Do you really have your own bartender?

Totally agree. The way its worded though, I think a person could do such a thing. Which is what scares me. I don't think my sister is smart enough or have enough confidence to do it. Her husband Im not sure if he would try or not not to convience her to do such a thing. Thats what scares me. No, I don't have my own personal bartender.




That would certainly be the smart way to do things - especially for anything that benefits or is to the detriment of only one of the attorneys-in-fact.




First of all, this is an incomplete sentence. Second, this is not the same thing as "'if one agent isn't willing to do it the other one can' or something along those lines." This means that, if one co-agent doesn't want to be attorney-in-fact, the remaining co-agent(s) will have the authority under the POA.

Ill type out the whole begining part. Thanks for the insight. I think my assumptions are correct, and I need to visit with mom first and then proceed from there. Thanks

 

[Zigner]

While the document may give you the ability to make certain changes, that doesn't mean the changes are proper.

In other words, changing the beneficiary on an account (if allowed) from your sister to yourself would likely not be proper.

 

[quincy]

… the line "if one agent isn't willing to do it the other one can" or something along those lines. So I guess my question is, can one of us just go and do something without both agreeing and "singing off" on it? … If co-agent named above is unable or unwilling to act, the remaining co agents shall serve with all rights and responsibilities originally given to all co agents" …

The bolded sentence should mean that someone who is named as co-agent can refuse to be a co-agent for any reason (e.g., lack of time or desire, illness) and the other named co-agent would then become the sole agent. It should not mean that either of the co-agents can act on their own to do whatever they want.

If this is not how your mother, you and your sister all interpret it, adding clarifying statements could be all that is necessary.

 

[amo1977]

I, DMN, appoint CMM and GEN, jointly and severally, my true and lawful attorneys-in-fact, (heirnafter referred to as agent) for me in my name, to do any and all acts i could do if personally present. {my comment, I think this shows that we can sign for her at any time}. This durable power of attorney becomes effective immeditely after I sign it.

If coagent named above is unable or unwilling to act, the remaining co-agent(s) shall serve with all rights and resopnsibilities origionially given to all co-agents. {Tells me one of us can do whatever we want without consulting the other or our mother}.

My agents shall act without bond.

My agents may preform for me and in my behalf may act in my behalf any act in the management , supervision, and care of estate and affairs that I personally have authority to preform. My agents may exercise for me in my name and on by behalf the powers encomberd below, which are intended to illistrate, and not limit, the scope of this power. The power of attorney shall apply to all property owned by me, weather it is title held as sole owner, as joint tenant, tenant in common, grantor or trustee of a revocable living trust, or otherwise.

The previous was typed word for word. The following is subject matter that it pertains too........securities, accounts, bennifits, deeds, other property including real estate, transfer of assets, operation of business, taxes, safe deposit box, post office, social security, employment of agents, fidiucary positions, nomination of guardian, access to medical and other records, severability, power of appointment, gifting, compensation.

If there is a specific question about something, ask. I have to go from one screen to the other to see how its typed up. Ive spent about 45 minutes so far, so trying to be thorough, but I got stuff to do too. I appoligize for the spelling. I suck at it. Normally Ill use my phone for auto correct. Trying to hurry and evidnently I worte one or two down wrong. The following is the end of the financial portion word for word.

THIS POWER OF ATTORNEY SHAL NOT BE AFFECTED BY MY SUBSIQUANT DISABILITY, INCAPACITY, INCOMPENTCY.

I hear by declare that any act or lawfully thing done hereunder by my said agents by me said agents shall be binding upon me, my heirs, my legal represenatives, personal represenatives, and assigns.

After that is just the mumble jumble for the notary and signatures.

 

[amo1977]

While the document may give you the ability to make certain changes, that doesn't mean the changes are proper.

In other words, changing the beneficiary on an account (if allowed) from your sister to yourself would likely not be proper.

Agreed

 

[amo1977]

The bolded sentence should mean that someone who is named as co-agent can refuse to be a co-agent for any reason (e.g., lack of time or desire, illness) and the other named co-agent would then become the sole agent. It should not mean that either of the co-agents can act on their own to do whatever they want.

If this is not how your mother, you and your sister all interpret it, adding clarifying statements could be all that is necessary.

I would say your explination is how mom wanted it. Weather we all realize that its that way is the question. Sister kinda pulled a quicky which I think her husband pushed and says Mom asked her to do it. Mom doesn't remember much (or says she doesn't remember much) and I wasn't kept in the loop very well. She called me one night and said "were moving mom tomorrow. We have help lined up. So you don't have to be there if you don't want to. " Of course her husband is mad at me, so they really didn't want me to be around. I also wasn't necesssarily against moving her, but I really wasn't infavor of it eitehr. I honestly let mom decide. My sister wanted to move her and didn't want me to try and change moms mind (is how I inturpert how it went down) so that's why I don't trust her. Sister doesn't like discussing this stuff either. Mom I think understands and somewhat shares my concerns but she isn't crazy about the drama.

 

[quincy]

I would say your explination is how mom wanted it. Weather we all realize that its that way is the question. Sister kinda pulled a quicky which I think her husband pushed and says Mom asked her to do it. Mom doesn't remember much (or says she doesn't remember much) and I wasn't kept in the loop very well. She called me one night and said "were moving mom tomorrow. We have help lined up. So you don't have to be there if you don't want to. " Of course her husband is mad at me, so they really didn't want me to be around. I also wasn't necesssarily against moving her, but I really wasn't infavor of it eitehr. I honestly let mom decide. My sister wanted to move her and didn't want me to try and change moms mind (is how I inturpert how it went down) so that's why I don't trust her. Sister doesn't like discussing this stuff either. Mom I think understands and somewhat shares my concerns but she isn't crazy about the drama.

You, your mom and your sister (excluding bothersome brother-in-law) would be smart to sit down with an attorney to make sure that everyone knows exactly what your mom wants. Have the attorney draft the agreement with language that all understand so that there can be no mistaking the wishes of your mom.

At age 91, your mom deserves to be free of unnecessary drama. Having a “disinterested” third party involved (the attorney) can better ensure drama will be kept to a minimum.

 

[zddoodah]

If coagent named above is unable or unwilling to act, the remaining co-agent(s) shall serve with all rights and resopnsibilities origionially given to all co-agents. {Tells me one of us can do whatever we want without consulting the other or our mother}.

Refer back to my prior response. Your interpretation of this is not correct.

I think that covers what you have asked, but let us know if not.

 

[quincy]

It is the difference in interpretation that makes a rewording of the document necessary in the first place - and to protect mom’s interests and to limit outside interference (e.g., brother-in-law), there really should be an attorney involved. An elder law attorney would be my recommendation.

Because of mom’s age and the fact that she is “being moved” around, I also recommend that mom has the meeting with an attorney soon. I would hate for anyone to act against her best interests.

 

[amo1977]

Refer back to my prior response. Your interpretation of this is not correct.

I think that covers what you have asked, but let us know if not.

So, if the verbage prevents anything from being done without the knoweledge of another....whats (the check and balance) prevents one from doing so other than getting caught and pushing the issue? Ive dropped off several coppies around. As long as my name is on there, and notice its not first they will say now so and so can contact you about this and that, you can sign, etc. So other than good old honesty, integrity, morals, and ethics what keeps someone from doing so. Say the county assessor or insurance agent sees the name on the document and thats all they need to know it looks like to me.

I guess before I start paying legal fees, can it be worded (and this may be what quincy is talking about) is a stipulation that any documents need to be signed by both power of attorneys? It'd be nice if it could be by mom or both power of attorneys. In the near future if not now, she can still reason, but can get swayed I feel. I like that its worded that if one person is out of town the other can step in and do what needs done in a timely manner. If there was good, open communication and mutual decision making I wouldn't have a problem. It looks to me that as long as whomevers name is on the document they can do whatever they want. Basically I feel both parties (and mom if she's capable) need to agree on whats being done and that all parties are aware of when something is being done.

 

[quincy]

So, if the verbage prevents anything from being done without the knoweledge of another....whats (the check and balance) prevents one from doing so other than getting caught and pushing the issue? Ive dropped off several coppies around. As long as my name is on there, and notice its not first they will say now so and so can contact you about this and that, you can sign, etc. So other than good old honesty, integrity, morals, and ethics what keeps someone from doing so. Say the county assessor or insurance agent sees the name on the document and thats all they need to know it looks like to me.

I guess before I start paying legal fees, can it be worded (and this may be what quincy is talking about) is a stipulation that any documents need to be signed by both power of attorneys? It'd be nice if it could be by mom or both power of attorneys. In the near future if not now, she can still reason, but can get swayed I feel. I like that its worded that if one person is out of town the other can step in and do what needs done in a timely manner. If there was good, open communication and mutual decision making I wouldn't have a problem. It looks to me that as long as whomevers name is on the document they can do whatever they want. Basically I feel both parties (and mom if she's capable) need to agree on whats being done and that all parties are aware of when something is being done.

I really recommend that your mom and you and your sister sit down with an attorney in your area to draft a proper legally binding agreement that takes all of your concerns into account.

One problem with the wording you propose is that one of the co-agents may not want to be a part of the decision making process and/or cannot be a part of the decision making process for some reason (illness, out of the country, etc).

Requiring two signatures, in other words, might not be the solution you think it is.

And if there is a meddling brother-in-law doing his best to meddle, your mother might have a delay in whatever it is she needs while the two co-agents and the interfering third party argue.