Yes, and No. The point of the power of attorney is that the person holding it will do only what the person granting it would have wanted or does want them to use it for. In general that means what they wanted while they were in control of their faculties.
There are many types of powers that can be written up to allow for very broad or very limited control.
For instance George is 18 and joining the military, he gives his mom Power of Attorney to handle his bills, bank accounts etc for him while he is overseas at war. Mom is only to use it to do what he would do if he were home. Generally mom has a good idea what her son wants done and an informal list of things she is to pay, purchase, etc. This is done with the knowledge that the power of attorney will not be used while George is home. It's usually written up that way.
James is 65 and has been diagnosed with the very first hints of cancer and suspicion of minor cognitive issues. James makes sure his will is in order, sets up a medical power of attorney, living will etc and assigns power of attorney to his adult daughter and also chooses someone to oversea the settling of his estate when he passes. He does so to make sure that his wishes and obligations are carried out when he is unable to do so. James is then diagnosed with mild cognitive decline which rapidly slides into severe cognitive decline and is no longer legally able to take care of his finances, remember his obligations etc. His daughter is supposed to use her power of attorney to do what James would have done before he became unable to think clearly. So if James always paid his electric bill on time but now says to her "don't pay that bill ever again", it is his daughters obligation to pay the bill even though James doesn't now want her to do so. See?
I realize that's rather oversimplified but the proper use of a power of attorney is basically to do what the person granting it would have wanted.
That is the best answer I have seen here. People do not understand that the POA limits and abilities are different depending on the state of the resident and the actual wording. There is some terrible legal advice here for this question. I think people have good intentions but are not qualified to answer anything legal, for anyone else. We should answer all questions by stating..."this is what happened to me" instead of saying "this or that is true for you". Thanks for saying this.
Time on this forum makes me more concerned about my future POA and estate planning decisions.
We all hope to be in a position where we don’t lose our faculties..., but if I do, I sure hope my POA would only act in my best interest (which hopefully would also be what I want).
Unfortunately once dementia sets in reasonable judgement goes out the window. My mother was a professional woman who now firmly believes bugs live in the cat litter, grow into robins and fight under her bed all night.
Depends on the type of power of attorney, the legal mental status of the principal, and whether the thing to be done is in the best interests of the principal or not.
You need to speak to an attorney. Find out the difference between the powers granted by a POA and those of a guardianship. Many many people think a POA has more teeth than it actually does.
The answer to your question depends on several things. I’ll use my experience with my Mom to give you an answer.
The POA my brother & I have over our mother is very broad, giving us legal authority over all her business. She has dementia, will soon be going on Medicaid, & we have had to do MANY things she didn’t want us to do. She didn’t want us to get rid of the stuff in her house when she went in the nursing home, didn’t want us to sell her car or scrap her van. Can’t you just see a small room in the nursing home with 2 large totes of shoes, 2 totes of purses, 100 dolls, and how is she even going to get on Medicaid owning 2 vehicles?!?! We signed a statement that all dealings would be to the BENEFIT of our mother, NOT for our personal gain.
Because my parents were able to convince people that they were able to care for themselves, even though they were incompetent, I couldn't do anything until a doctor said they were incompetent. I ended up going to court and getting Legal Guardianship. With Guardianship I have been able to care for my parents, and make sure they are safe and well cared for. Like some of the others have said; Go see an attorney and explain your situation. You will be told what you need to do to start the ball rolling.
Depends on the terms of the Power of Attorney. Need to read the power of attorney carefully. Also, legally you always have to act in the Best interest of the principal. Just because a power of attorney grants the agent a power it doesn’t mean they have the right to act on that power.
Even with a general power of attorney with broad powers an agent can't generally (1) change a principal’s will (2).Make decisions on behalf of the principal after their death. (3) Change or transfer POA to someone else. (4) choose another agent.
Also, your state law may limit what can be done,
When in doubt (1) be conservative in interpreting the rights of the agent and (2) talk with a lawyer
There are two types of POA. An immediate where a POA can take over at that time. Then a Springing, that only takes effect if the person can not make decisions for themselves.
I have an immediate for my disabled nephew for financial. He is not good with money, so I oversee it. My Moms was a Springing which I took over when her Dementia got worse. In hers, it was listed what I could and could not do.
If the person still is cognitive, can make their own decisions, then the POA has no authority in a Springing POA. So no, the POA cannot do something the principle does not want. If incognitant, the POA can only do what the POA stipulates they can do in the paperwork. Anything else can be questioned.
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There are many types of powers that can be written up to allow for very broad or very limited control.
For instance George is 18 and joining the military, he gives his mom Power of Attorney to handle his bills, bank accounts etc for him while he is overseas at war. Mom is only to use it to do what he would do if he were home. Generally mom has a good idea what her son wants done and an informal list of things she is to pay, purchase, etc. This is done with the knowledge that the power of attorney will not be used while George is home. It's usually written up that way.
James is 65 and has been diagnosed with the very first hints of cancer and suspicion of minor cognitive issues. James makes sure his will is in order, sets up a medical power of attorney, living will etc and assigns power of attorney to his adult daughter and also chooses someone to oversea the settling of his estate when he passes. He does so to make sure that his wishes and obligations are carried out when he is unable to do so. James is then diagnosed with mild cognitive decline which rapidly slides into severe cognitive decline and is no longer legally able to take care of his finances, remember his obligations etc. His daughter is supposed to use her power of attorney to do what James would have done before he became unable to think clearly. So if James always paid his electric bill on time but now says to her "don't pay that bill ever again", it is his daughters obligation to pay the bill even though James doesn't now want her to do so. See?
I realize that's rather oversimplified but the proper use of a power of attorney is basically to do what the person granting it would have wanted.
Please see a lawyer (in your state) and do not rely on opinions here.
We all hope to be in a position where we don’t lose our faculties..., but if I do, I sure hope my POA would only act in my best interest (which hopefully would also be what I want).
It is terrifying to think otherwise.
Why do you ask?
The POA my brother & I have over our mother is very broad, giving us legal authority over all her business. She has dementia, will soon be going on Medicaid, & we have had to do MANY things she didn’t want us to do. She didn’t want us to get rid of the stuff in her house when she went in the nursing home, didn’t want us to sell her car or scrap her van. Can’t you just see a small room in the nursing home with 2 large totes of shoes, 2 totes of purses, 100 dolls, and how is she even going to get on Medicaid owning 2 vehicles?!?! We signed a statement that all dealings would be to the BENEFIT of our mother, NOT for our personal gain.
With Guardianship I have been able to care for my parents, and make sure they are safe and well cared for.
Like some of the others have said; Go see an attorney and explain your situation. You will be told what you need to do to start the ball rolling.
Even with a general power of attorney with broad powers an agent can't generally (1) change a principal’s will (2).Make decisions on behalf of the principal after their death. (3) Change or transfer POA to someone else. (4) choose another agent.
Also, your state law may limit what can be done,
When in doubt (1) be conservative in interpreting the rights of the agent and (2) talk with a lawyer
I have an immediate for my disabled nephew for financial. He is not good with money, so I oversee it. My Moms was a Springing which I took over when her Dementia got worse. In hers, it was listed what I could and could not do.
If the person still is cognitive, can make their own decisions, then the POA has no authority in a Springing POA. So no, the POA cannot do something the principle does not want. If incognitant, the POA can only do what the POA stipulates they can do in the paperwork. Anything else can be questioned.
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