Power of attorney question

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Dan999
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Power of attorney question

Post by Dan999 »

My brother a has power of attorney for our aunt, and is executor of her estate. She is in her 90's but doing ok. He is to distribute the assets as he sees fit when she passes. My brother is in very poor health, so his daughter has a power of attorney over him. They are not using an attorney for the will or powers of attorney. They do not have a legal background.

So, does his daughter have power of attorney over the aunt's assets, when the aunt passes away?

I guess it makes a difference if the daughter was a general power of attorney or a medical power of attorney for my brother. I do not know the details on this.

I have no interest in the estate. It does not amount to much, and may be used up for a nursing home. But I know my aunt would not want my brother's daughter to have the power to distribute her assets as the daughter see fit. (Most likely to the daughter's benefit.)

They live 2 states away, so communication on this issue does not happen. I am staying out of it, even though I see problems on the horizon.

But in case I am asked my opinion on this, I kind of would like to have the group's thoughts on this. It will be either in Ohio or Wv. Not sure.

Thanks for whatever help you can offer.

Dan999
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CAsage
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Re: Power of attorney question

Post by CAsage »

Power of Attorney ends upon the death of the Aunt (or anyone, to be specific). And in no case does it "pass" like a chain letter! When the aunt passes, if the brother is still alive, he loses the power of attorney but gains "executor" power. Depending on what the remaining assets are, there might be more direct ways to pass things - like Pay on Death for savings/checking etc. Your aunt needs someone in decent healh?
This is my personal knowledge from reading, not legal advice!
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Topic Author
Dan999
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Re: Power of attorney question

Post by Dan999 »

Thanks, that helps. The chain letter part is very clear and helpful.
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dbr
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Re: Power of attorney question

Post by dbr »

It might be time to consider a change in who is designated to be the executor.
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Kenkat
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Re: Power of attorney question

Post by Kenkat »

In most states, unless there is a legally filed and valid will that specifically states that the brother can distribute assets as he sees fit, the estate would go to probate and be distributed according to the laws of that state. An informal agreement between the parties does not usually carry weight.

If it's not a lot of money and is distributed to everyone's satisfaction, there may not be any issues but it would be better for your aunt to create a simple will to make her wishes clear.
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Re: Power of attorney question

Post by kenner »

Dan999 wrote:My brother ... is executor of her estate. He is to distribute the assets as he sees fit when she passes. My brother is in very poor health, so his daughter has a power of attorney over him. They do not have a legal background.

I have no interest in the estate. It does not amount to much, and may be used up for a nursing home. But I know my aunt would not want my brother's daughter to have the power to distribute her assets as the daughter see fit. (Most likely to the daughter's benefit.)

They live 2 states away, so communication on this issue does not happen. I am staying out of it, even though I see problems on the horizon.

But in case I am asked my opinion on this, I kind of would like to have the group's thoughts on this. It will be either in Ohio or Wv. Not sure.

Thanks for whatever help you can offer.

Dan999
Do the estate documents name your brother's daughter as co-executor or alternate executor of the estate in the event your brother cannot serve in that capacity?

Might be something to check on.
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Dan999
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Re: Power of attorney question

Post by Dan999 »

No the daughter is not a co executor in the will.
The will was hand written and signed by my aunt but not witnessed.
I have decided this is one of those situations, in which I will stay out of it since my input was not requested. I did say she should have had the will notarized or witnessed 2 years ago when she wrote the will.
When my advice is requested, I will insist she spend a few hundred dollars on an attorney to draw up the documents and see that it is done correctly.
Thanks
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cheese_breath
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Re: Power of attorney question

Post by cheese_breath »

Your brother is not executor of your aunt's estate. Her will nominates him for the position. Although the nomination carries a lot of weight weight with the court, the court is not compelled to approve it. If the court judges your brother unfit to perform the executorship duties it may choose someone else. His poor health might be an influencing factor in this decision. It is always wise to nominate an alternate executor in the will in case the primary choice is unable or unwilling to serve.

edit: I just noticed you said the aunt's estate doesn't amount to much. Most (maybe all) states have special provisions for handling small estates which may provide a simplified probate process and/or may eliminate the need to probate the will at all.
Last edited by cheese_breath on Mon Feb 13, 2017 10:42 am, edited 1 time in total.
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kenner
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Re: Power of attorney question

Post by kenner »

Dan999 wrote: I have decided this is one of those situations, in which I will stay out of it since my input was not requested.
This may be a very good decision. You have already given sound guidance. In some situations, there's only so much that a well-meaning family member can do.
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Re: Power of attorney question

Post by smackboy1 »

Dan999 wrote:My brother a has power of attorney for our aunt, and is executor of her estate. She is in her 90's but doing ok. He is to distribute the assets as he sees fit when she passes. My brother is in very poor health, so his daughter has a power of attorney over him. They are not using an attorney for the will or powers of attorney. They do not have a legal background.

So, does his daughter have power of attorney over the aunt's assets, when the aunt passes away?

I guess it makes a difference if the daughter was a general power of attorney or a medical power of attorney for my brother. I do not know the details on this.
There is a little bit of confusion so hopefully I can clear up some basic things.

I do not know the law for your state. However, here are some general points:

A power of attorney allows a person (the principal) to designate another person (the attorney-in-fact) to act on on their behalf under certain terms and conditions as written in the document. It can be very powerful and allow almost unlimited authority, or limited to only a few specific things. However, the attorney-in-fact only has the power the principal has. So if the principal dies, the attorney-in-fact's power under the POA ends immediately.

What they need is a "durable power of attorney". What that means is that the POA is effective immediately upon signing and it's effective even if the principal is incapacitated, as long as she is still alive. These types of POA generally grant almost unlimited powers to the attorney-in-fact to do financial or legal transactions on behalf of the principal. e.g. your brother could sell the aunt's house to pay the medical bills. There can be successor attorney-in-fact named in case the first cannot serve. It's important the documents are written very specifically because are many other types of POA that have different terms and conditions as to when they come into effect or when they cease to be effective or limited powers. Sometimes it's not desirable for a determination of incapacity to have to take place before the POA can take effect.

A medical POA a.k.a. living will a.k.a. advanced healthcare directive is often a separate POA intended to address the limited situation of a person's desires regarding medical care in the event they lack capacity to decide.

An executor executes the instructions in the will of a deceased person. Until the person is deceased, there is no executor and the named person in the will has no powers. Often there are a series of executors named in case the first choice cannot serve.

Generally, the daughter empowered as an attorney-in-fact for your brother would not be able to just automatically step into the role of the aunt's executor just because the brother was named executor in the will. If the court named your brother executor, that role is personal to him and only he would be executor. If he could not serve, the court would appoint another person. Similarly the POAs cannot be daisy chained. The daughter cannot join the POA of her father together with the POA of your aunt together to control your aunt's financial and legal affairs while the aunt is still alive.

For the daughter to control any of the aunt's money would require 2 steps: So if the aunt gives/bequests any money to your brother. Or if he used her POA to transfer her money to himself, only then would his daughter, in theory, have control over it through his durable POA.
Disclaimer: nothing written here should be taken as legal advice, but I did stay at a Holiday Inn Express last night.
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Dan999
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Re: Power of attorney question

Post by Dan999 »

Thanks much.
This is very clear and very helpful. It does at least let me be assured that the daughter could not squander the assets if any are left.

The aunt is in a nursing home on a temporary basis after surgery. Medicare is picking up the first few months, and if she is not release and has to stay in the nursing home, I guess her assets will start being depleted. I think that is a good use for her assets since she has looked after her extended family her whole life, and now her funds will bring her some comfort with good care. She is quite happy there for now. She is in a good one with good care.

I will print this out and have it as a reference point.
But still will insist they get some professional legal advice if and when asked.
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dm200
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Re: Power of attorney question

Post by dm200 »

Details on PoAs vary by state.

In the past, generally, a PoA needed to state that it was "durable"; otherwise it was not. Now, in most states, a PoA is assumed to be durable unless state otherwise.

A PoA cannot be passed on to someone else.

This makes no sense to me:
He is to distribute the assets as he sees fit when she passes.
The will specifies who gets assets. The executor follows the distribution specified in the will. Maybe it can be done, but I have never heard of just letting an executor distribute assets as he wishes??
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Re: Power of attorney question

Post by LadyGeek »

This thread is now in the Personal Finance (Not Investing) forum (Estate planning.
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Gropes & Ray
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Re: Power of attorney question

Post by Gropes & Ray »

Dan999 wrote: The will was hand written and signed by my aunt but not witnessed.
I am not licensed to practice law in either WV or OH. However, I have reason to believe that a handwritten, unwitnessed will is valid in West Virginia, but not in Ohio. You should do some research on "holographic" wills.
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