QUESTION
Can my husband as her POA do these types of transactions since the POA document does not limit his powers?
Asked on Feb 27th, 2013 on Estate Planning - Michigan
More details to this question:
My husband is the power of attorney for his mother and she is now home with a live in caregiver and has dementia. My husband has assumed the responsibility of her finances. Her available balance is now at the point where she may need to liquidate or withdraw from her investments and/or retirement accounts. Can my husband as her POA do these types of transactions since the POA document does not limit his powers? She is currently have both good days and bad days with her dementia.
20 ANSWERS
Yes, he can do whatever the POA empowers him to do.
Answered on Apr 01st, 2013 at 2:36 AM
Family Law Attorney serving Rogers, AR
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Wright, Lindsey & Jennings LLP
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If the power of attorney executed by your mother-in-law was durable, meaning that the power of attorney was not impacted by your mother-in-laws subsequent incapacity, then your husband's ability to act as your mother-in-laws agent would continue now even though she has dementia. Unless the scope of your husband's authority was limited, typical powers of attorney in Arkansas would permit the attorney-in-fact or the agent to utilize liquid funds or investments to provide care for the principal, your mother-in-law, just as she would have had access if she had capacity to use the funds.
Answered on Mar 04th, 2013 at 2:05 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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The common-law rule was that the agent under a POA could do exactly what was authorized in the document appointing him. Any well-drafted general durable POA will include the power to sell securities and order distributions from retirement accounts. The key is that your husband, as agent, must do ONLY what his mother would do if she were able, and ONLY such things as are clearly for Mom's best interest. If she has good days, talk things over with her on the good days and make plans. If withdrawing from retirement plans, make darn sure you get the tax aspects straight. If there are other family members involved, make sure they are aware of the cost of Mom's care and its effect on her estate (because I guarantee that when she passes, they will claim she was a millionaire and you stole it all).
Answered on Mar 01st, 2013 at 9:22 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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The POA in its application, is limited to the powers given/stated. He needs to obtain a conservatorship of her person and estate, to do the things or take the actions you are suggesting.
Answered on Mar 01st, 2013 at 9:10 PM
Estate Planning Attorney serving Wilmington, DE
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Reger Rizzo & Darnall, LLP
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If a Durable Power of Attorney that takes effect upon signing and if the power gives him those powers, yes he can.
Answered on Mar 01st, 2013 at 8:44 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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I think you need to take the POA to an attorney for review. Typically, a POA has to identify specific powers that the attorney has, e.g. power to invest funds, sell real estate, etc. If the POA does not do that, you may need to set up a conservatorship to let him manage her affairs.
Answered on Mar 01st, 2013 at 8:23 PM
Most POA's allow for these type of transactions. However, It really depends on what the POA says and how the accounts are set up. Before giving you a proper answer, it would be necessary to review the document.
Answered on Mar 01st, 2013 at 8:22 PM
The scope of the agent's authority is defined by the Power of Attorney document. Actions not specifically authorized are problematic. The age of the document is also an issue. Your mother-in-law should meet with her own attorney to explore updating the Power of Attorney to include specific authorization that may be necessary. Additionally, the Power of Attorney should name a HIPAA Personal Representative. In addition to these issues, a Health Care Power of Attorney containing HIPAA authority should also be considered. Finally, your husband may seek advice from his own attorney to make sure he acts appropriately with the Power of Attorney.
Answered on Mar 01st, 2013 at 8:13 PM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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If the POA is properly drawn, your husband should have access to all of his mother's accounts. He should keep good records of what funds are withdrawn and what they are used for.
Answered on Mar 01st, 2013 at 8:10 PM
Probate & Trust Attorney serving Seminole, FL
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Law Offices of Phillip Day, P.L.
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Most likely based on your description. You may need to get an affidavit from a physician depending on the type of Power of Attorney you have, in other words, is it a "springing" power or immediate power. Up until recently, "springing" powers or powers that became effective only upon the incapacity of the person for who the powers are drafted. Additionally, the powers have to enumerate that the agent can sell assets on behalf of his mom. You probably would benefit from an attorney review to better understand what you can or cannot do. At the end of the day, whatever the agent does, it has to be for the benefit of the person for who the power were drafted.
Answered on Mar 01st, 2013 at 8:10 PM
Estate Planning Attorney serving Provo, UT
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Randy M. Lish, Attorney at Law
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Depending on what the DPOA says, he may be able to get away with it. However, if your state has a statute regarding elder abuse, he may still be in violation of that statute.
Answered on Mar 01st, 2013 at 7:57 PM
Yes, assuming he has a fairly standard durable Power of Attorney, he can do everything that needs to be done. He should be very careful to keep separate accounts for all of her money. The best and right thing to do is to open a separate bank or investment account just for her transactions and not mingle any other money into it.
Answered on Mar 01st, 2013 at 7:54 PM
2 Awards
Yes he can as long as the funds are used for his mother's benefit.
Answered on Mar 01st, 2013 at 7:43 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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Yes, he can do this.
Answered on Mar 01st, 2013 at 6:52 PM
Edwin K. Niles
Yes.
Answered on Mar 01st, 2013 at 6:47 PM
3 Awards
In part it depends if the power of attorney is durable or not. It also depends upon whether it meets the statutory requirements and financial institutions requirements. It is probably best to have power of attorney reviewed before liquidating assets. Also a doctors letter or two may be required. Accordingly your husband's first step should be to meet with an attorney. Best of luck.
Answered on Mar 01st, 2013 at 6:45 PM
Real Estate Attorney serving Honolulu, HI
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Zahaby Law Offices
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If your husband has broad powers, generally, he can take care of financial affairs as Power of Attorney. However, the Power of Attorney would have to be examined in order to give a complete answer. Some organizations require that power of the specific type of account be expressly mentioned in the Power of Attorney.
Answered on Mar 01st, 2013 at 6:44 PM
If the triggers in the power of attorney have been pulled - normally by written medical opinions - then whatever needs to be done with her estate can be done.
Answered on Mar 01st, 2013 at 6:39 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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What your husband can and cannot do should be spelled out in the POA form. If it is not, you would need to look to state law for powers. Michigan has a new POA statute that provides some guidance, but the default is the POA form itself. Your husband should document EVERYTHING he does.
Answered on Mar 01st, 2013 at 6:39 PM
Estate Planning Attorney serving Marquette, MI
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The Wideman Law Center, P.C.
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Yes he can as long as what he does is in her best interest.
Answered on Mar 01st, 2013 at 6:37 PM