What activates a Durable Power of Attorney?

Here in the State of Florida I had a Power of Attorney and Durable Power of Attorney that I actually wrote for my mother (with the help of on-line examples). She read it over, we had a notary and she signed it. The notary did ask her questions to make sure she was competent and knew what she was signing. It also had to be established that she was competent since a Durable Power of Attorney needs to be signed and notarized while the person is competent, but does not take effect until the person becomes incompetent. I was told by the rehab administrators and attorneys that this was all that needed to be done. I did not have to register or file the document. I used the Power of Attorney numerous times; thankfully never had to use the Durable Power of Attorney. When I showed it to people that needed to see it they told me that apparently I had a good attorney draw it up (LOL) because it was done above and beyond what they normally saw. I had
numbered each page 1 of 6, 2 of 6, etc.; had a place for mom to initial each and every page and a place on each page for the notary to also initial. This way there could be no question as to whether these were the original pages of the entire document that mom signed. I covered myself in every way.

I know that in North Carolina, it does have to be registered with them in order for it to be legal. By the way, it is public record that is easily accessible online for free. I know because I've seen my aunt's where she signed it less than two weeks before her death with an X even though she was quite literate and her previous DPOA had her signature to prove it. How they managed to get that through, I'll never know.

Just like I'll never know why the original one had a provision in it that gave her two adult children control of all of her personal relationships. There is no way that it would even cross my mind to do that with my own parent.

Crowe - there's always something with family, isn't it. Haven't you been DPOA & MPOA for your mom now for like 3 years and using your POA's on her behalf? Has the validity of the POA's been an issue for you to make decisions for mom's NH, banking, whatever?

Probably not. Perhaps auntie is confusing POA's with documents that have to be filed (registered) with probate after death?

One issue that has seem to come up more frequently now with POA's is the whole issue with banks viewing them as "springing". How the POA is written makes the difference. Whether the POA is durable (DPOA) also makes a huge difference.
Some folks have POA's from ages ago before many states required the 2 independent witness and active license notary seal or downloaded from the net, that doesn't pass the sniff test for some institutions to accept.

If you have an old POA done for your folks there often can be a problem with it "SPRINGING" - many banks & other financial or insurance co.'s will not accept an old POA without the medical paperwork that allows the POA to "spring" into action. On letterhead, original signature paperwork that states that mom/dad is unable, incapacitated, demented, whatever. This can be a big problem as most MD’s don't/won't want to do such paperwork as their area is medical not legal which this is all about. Really, truly this can happen... you can't make this crap up.

My uncle was fully lucid and making all of his decisions and yet, his DPOA had to be registered in order for it to be valid if the time ever came when it was to be used. It was registered with the Registrar of Deeds at the time that he made it. So was my aunt's. My mother's will have to be as well or it won't be legally valid.

By the way, neither one was ever used for any real estate transactions. Any disposition of any real estate that either of them sold or gave away during their lifetimes had their own signatures on it and not the person designated as their attorney-in-fact. Their DPOAs were only used in order to handle their banking after their mobility became an issue, but they still had to be registered with the Registrar of Deeds. That's just a fact.

Perhaps this is specific to their state, county or parish? It would be a easy source of revenue at what $ 20 - $ 50 per document or $ 5 - 10 per page recording fee. DPOA's are inherently a private document, so if it's registered and on file at the courthouse, it would, I think, become a public document available to all.

Currently I am DPOA & MPOA for my mom, a Texas resident, and have used the documents in all sorts of situations with no problem without it being "registered". I was both POA's for an aunt with property in TX, NM & FL and never had to have it registered to do the many, many financial & legal issues. But did do a separate DPOA for finances specific to the NM land so the Realtor could deal with the whatever's for those sales, now that DPOA was registered as it was companionized to the legal for the sales. The only problem I have ever had with getting stuff done with a DPOA is in using my passport as my ID as a clerk had never seen one before......

My DH was the POA's for his mom for when she was in LA and then moved to TX, again it never needed to be registered for him to do whatever was needed.

My impression has been that a valid, dual witnessed, written in accordance with the persons state laws, notarized DPOA is good for just about everything on the elders behalf except writing a will or doing a codicil to it.

Regarding when a Durable POA becomes "active"; in other words when can you actually step in on her behalf and actually "use" the Durable POA - a medical doctor needs to determine that she is "incompetent". The DPOA MUST be signed by the person, notarized and witnessed when the person is "competent" but does not become "active" until the person has been deemed "incompetent" by a medical doctor. I was told by numerous attorneys that when I signed anything in behalf of my mother (I was her agent for her POA and DPOA) to sign it with my name and then write "as POA for ____ (fill in her name)". That way, I was not just signing my name on a document but was signing it legally on her behalf. If I just sign a document I would be legally financially responsible; however signing it with my name and then stating that I was POA for her, I was acting in her behalf and myself or my family would not be financially responsible.

First and foremost, FPOAs and DPOAs are PRIVATE, and do not need to be filed with your county prontathary(forgive spellling). Only a Will needs to be recorded; and even then it is not necessary to do so. There are two types of Powers-of-Attorney.The first is a Financial POA, which is effective immediately after being signed and witnessed by a notary. This document allows you access to and control over all financial matters, up to, and including real estate transactions. The only place that one of my relatives ran into a problem was at the bank. They had some sort of specific document that they wanted executed in order for my relative to access and work with the bank. Otherwise, they are a legal and binding document anywhere in the country, not just in the state in which they are signed. The other document is a Durable POA for Health Care. This document is also effective as soon as it is signed, and initialed at the paragraphs your relatives want you to control for them once they are unable to do so for themselves. Neither document needs to be registered with a court, unless a court initiates the order. These are private documents not privy to public scrutiny. A relative can request an accounting of expenditures on your Mom's behalf if they believe something is being done illegally. Your bank would be the first to put a red flag on anything they feel is not proper and correct. As I said previously, if the POAs were signed when your relative was in good health, you will not have a problem. Do not let family scare you into doing something that does not need to be done. From what I have read here, you have the right to, and continue to do what is best for your parent. A Guardianship although nice, at this point is really useless because you already control the finances. You can also claim your Mom as a dependent on your taxes if you are providing more than half of her support throughout the year. A Guardianship is not necessary for that either.

Igloo, in the state where I currently reside, the DPOA has to be filed with the Registrar of Deeds in the county where your elder lives or it isn't considered valid. Just having one doesn't make it valid until it is filed, period.

The only time I've heard of DPOA's might having to be registered is when the DPOA as the "agent" is doing real estate transaction(s) for the "principal". The DPOA gets registered so that a Deed of Trust can be issued by the land or conveyance office
specific to that transaction.

TrishaK, do you know the location of the POA? I gather that your mother is living with you in your house. You may need to find a way to search the house.