QUESTION

By law if the one of two durable Powers of attorneys gets removed will they be notified?

Asked on Dec 01st, 2012 on Estate Planning - Maryland
More details to this question:
My mother recently added me to her will as an equal durable power of attorney with my sister. Because my sister travels a lot. My sister went insane and said she is having it reversed. Now she claims it has been reversed. Would I have been notified by law if that were the case? It has been 2 weeks and I have received nothing. She is trying to say that my mother is incompetent to make any decisions. The attorney at the time signed off on her being of sound mind. Please let me know if I would have been notified and if my sister would have to go to court to deem my mother incompetent. Thank you.
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7 ANSWERS

Business Litigation Attorney serving Orange, CA at Law Offices of Frank Granato
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Not necessarily.
Answered on Dec 05th, 2012 at 4:01 PM

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Business Planning Attorney serving Livonia, MI at Frederick & Frederick Attorneys at Law
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Your summary is confusing. A person is not named as a Power of Attorney in a Will. In fact, this is done with two separate documents. You could have been named as Personal Representative in the Will. If you were named in a Will and it was changed, then you would not get any notice of this, in most cases. The same is true of a POA, unless you were already acting as Agent under that form. Your mother would normally be declared incapacitated by a court, although some documents provide that this can happen based on the written statement of two physicians who have examined the person.
Answered on Dec 03rd, 2012 at 2:46 PM

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Generally competency should be determined by the Court. As POA, you do not necessarily need to be notified although it makes sense to let you know you no longer can operate on the other's behalf. If mother was incompetent to appoint you, she is likely incompetent to appoint the sister.
Answered on Dec 03rd, 2012 at 2:45 PM

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Thomas Edward Gates
First, Power of Attorney is not given via a will. The Power of attorney is a standalone document conveying specific rights to the Attorney-in-Fact. The Power of Attorney is only valid while your mother is alive. The will only can be reversed by your mother. If your mother is now incompetent, she would not have the capacity to change her will back to the way it was. You will not get any notice of any change.
Answered on Dec 03rd, 2012 at 2:45 PM

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Probate Attorney serving Las Vegas, NV
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Not necessarily, although it is recommended. If you think that you have been removed, you should ask the maker or contact the attorney who prepared the power of attorney that you presently possess.
Answered on Dec 03rd, 2012 at 1:36 PM

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Elder Law Attorney serving Hollister, CA at Charles R. Perry
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If your mother gave you a durable power of attorney, then your mother has the right to revoke it. She also would have an obligation to inform you that the power has been revoked, since otherwise you would not know and could continue using it. A court could indeed declare your mother incompetent but that would only mean incompetent at the time of the court's decision, and not at the time of the execution of the power of attorney. As such, a declaration of conservatorship would not constitute revocation of a durable power of attorney. Note that much depends on what the document says as to whether it remains in force at any given time. I am simply responding to the facts as presented. You may wish to meet with a probate lawyer in your area for a short consultation to verify the validity of the power that you hold.
Answered on Dec 03rd, 2012 at 1:08 PM

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Alternative Dispute Resolution Attorney serving Baltimore, MD at Whiteford, Taylor & Preston L.L.P.
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The will and the power of attorney are separate documents. There is no requirement under law that you receive a copy of a document revoking your appointment under a power of attorney. For certain purposes, a court order is necessary to prove incompetence.
Answered on Dec 03rd, 2012 at 1:07 PM

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