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What to Do When Power of Attorney Resigns?


By merv,

  Filed under: Elder Law, Estate Planning

Introduction
Definitions
Substitution Clause
Conservatorship
Health Care Surrogate
Care Manager Mediation

Dear Mr. Miller:

Introduction:  I’ve been thinking. My Dad named my sister as his power of attorney both for financial and medical.  He did not name me, or anyone as a backup.  He really didn’t give a reason, just said that was what he did.

My sister can be squirrelly from time to time. She really doesn’t like my father and has said when he loses it, she’s just going to let him rot.  So what happens if she refuses to act and he has lost it? How do we get money to take care of him?  How do we sign him in to a nursing facility?

The Good Daughter

Dear Good:

Definitions:  It would seem your Dad has made a very poor choice in naming his attorney-in-fact, also called an agent and sometimes referred to as the power of attorney.  You might want to talk about that and the fact that maybe he should name you, at least, as a backup–just in case.

Substitution Clause:  Assuming that fails, what happens?  If the power of attorney document for finances has a “substitution clause” in it, then your sister can decline to act and name you as the “substitute.”  The clause will have words such as “with full power of substitution of another in her place and stead.”  Make sure you have an attorney prepare the substitution document so you don’t screw it up.  Nevertheless, that power would be exercised (when the time comes) by a simple one page statement that your sister is (1) exercising that power, (2) identifying the document (by name and date) and the section number or paragraph number and page number where it appears, and (3) naming you as the substitute. Unfortunately, many financial powers of attorney documents do not contain this clause.  Also, most health care powers do not contain such a clause.

Conservatorship:  So what to do if your sister refuses or does not have such a power?  For financial issues, you will need to go to court and have the court appoint you as a conservator (if you are not familiar with that word, think “guardian”).  In emergencies, this can be done fairly quickly.  However, any time one goes to court, it is not inexpensive.  It is much better to have alternatives and backups in place rather than going to court.

Health Care Surrogate:  What about the medical/health issues?  What if your sister refuses to act for those problems?  The hospital is duty bound to make reasonable efforts to determine who is and to contact the patient’s agent, surrogate, or family member in cases where the patient is unconscious or can’t communicate.  If the health care agent is unavailable or refuses to act, the patient can make an oral designation of a surrogate to act for himself.  This surrogate could then make decisions.  However, this decision making authority only lasts for that course of treatment or illness in which the designation was made.

Care Manager Mediation:  Bottom line, have a discussion with your Dad; maybe even a family discussion.  If needed, you might want to get an attorney or a care manager involved to act as mediator.

10/7/2017

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About Living Trusts

About Living Trusts is hosted by the Law Offices of Merwyn J. Miller, as your online resource center to help you explore these key issues, and others, regarding your estate.

Merwyn J. Miller, J.D.


  • Board Certified Specialist in Estate Planning, Trust & Probate Law
  • Co-Author of legal text book and of “Don’t Go Broke in a Nursing Home
  • Teacher of law courses at public and private colleges
  • Continuing Education Instructor for attorneys
  • Columnist for largest regional newspaper in San Diego County and professional journals for 15 years, Contributing author to the book “In Your Service: The Veteran’s Friend”
  • Masters Degree in Financial Services - Estate Planning
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