I am an only child who signed the paperwork making me DPOA and if I was unable, my husband would be designated. We have been cleaning out her home since 2015 but have been delayed as it is 3 hours away. Now we have it 3/4 cleared and we are starting to consider selling it. I wanted a legal, certified copy of the DPOA and find it was never filed at the courthouse. I spoke to the notary who drew up the document (at the law firm who handled the probate for Dad and created the family trust). She is sending documents by email to get me an updated DPOA and to name me as a trustee for the trust which has the house in it (changing addresses on documentation, adding HIPPA info, getting hubby's signature and a grandchild's signature as well) The concern is the diagnosis.
What questions will she be asked since she has moderate dementia? She is in an AL Memory Care unit because she wanted to move out of our home to regain some independence. Her primary felt she would be better served in the MC because of her frequent infections, mobility issues and urinary incontinence. Her dementia mainly involves organizational, time and things like writing checks/reading financial statements.
Would this preclude her in signing a new, updated document especially if there is no other family member to contest it?
I did want to share something I discovered on rereading my father's DPOA. It includes authorization for me to appoint someone to work with me, or succeed me. After all these years I didn't realize I had that authority.
So, for anyone who's in this situation, read the document carefully, very carefully. You may have authority to add someone.
And FYI, this was drafted by a top notch law for which I had worked. It wasn't some downloadable Internet form - far from it.
DO NOT SIGN ANYTHING EVEN THOUGH IT IS COMING FROM THE FAMILY ATTORNEY YET!!
The State has it's website to answer all of your questions!!
There are also government departments that specialize regarding any question you have and want to perfectly understand.
They should also provide a PDF which you can download/print so you can study everything i.e., the majority of people do not know that NOTARY LAWS can be changed by the State government during any session. Look for this under the Secretary of State website. It will provide a short synopsis of what has been changed including the Bill that required the changes. Again, a PDF should be available for download/print.
I found this out researching Notary Law after I found out a sibling had Mom redo a document. An Estate Attorney had a very specific article explaining what will be happening in the future for those who "think" everything has been done in accordance with the Law.
I'm lucky to have found this as the particular document is null/void.
Get a 2nd orv3rd opinion. Research statutes, write the statute # and your understanding of it to make sure that you do understand what you're reading.
I do it all of the time. I have a membership with a company like Legal.com that I can send any question I have to a specific Estate Attorney. I always provide the statute along with my understanding so I am able to find out if I'm correct; his answer is different with an explanation offering me to research in depth.
When it comes to legalese, even though they passed the board, attorneys who specialize in Estate issues do not always understand the Law.
It's similar to doctors vs nurses.
Medical education requirements are done on a totally different scale. I have a family doctor in my family. Our daughter is an RN.
My step-brother's in-law education was done on a PASS-FAIL system while our daughter's medical education was on a system based on grade i.e. A, B, C, D, F.
RNs actually save more lives than doctors. The reason, RNs are schooled in a more interaction of medications vs the disease or condition itself.
I know for a fact that our daughter has argued with doctors who are surgeons that a patient should not have a surgery done BECAUSE a nurse MUST read, not glance, but read the chart of medications. She has even stopped the patient prep due to a doctor(s) not reading a chart.
So buyer beware!
Verify what the Court states a person in your Mother's mental state is required to answer.
Whether it's Alzheimer's or dementia, States have different requirements. This is because these illnesses are referred to as Sundowner's.
Case in point, our Mother was in the hospital for a month. She has dementia. The State Law is the person in question MUST understand what they are signing OR if they do not, all of the siblings MUST discuss as to whom will have the responsibility and this decision must be based on the majority. In my case, 3/4 decision. The "fraud" committed here was
1. I was not included in the discussion
2. The sibling DEMANDED that the cognitive tests so Mom could legally sign the document, would ONLY be done in the morning after Mom had eaten breakfast....because this sibling knew that the morning is the best time to get the result this sibling wanted.
Many States require a Fiduciary attorney made available to represent the person. That means that the Fiduciary basically becomes your Mother and argues in her stead.
Sorry, but it's so mind boggling what must be done legally at the end of one's mental state and end of life.
It is not required in WV to file POAs with the county clerk but it is customary, according to my attorney, for the very reason that they get lost etc. My parents fuddy duddy of a lawyer did not file it, and has now retired and destroyed his records. Also, it’s not required to have POA recorded for real estate transactions but it’s a safe/no questions asked, for title searches, questions of ownership and so on. After it’s granted everything, real estate and all assets are included. No more screwing around with jerko banks.
After discussing it with my realtor and two different attorneys we all felt guardianship/conservator was the safest most foolproof route. It might have been possible to do a lost document hearing to resurrect my POA but if we have to go before a judge why not get the whole enchilada....
And I have a sale pending contingent on completion of the G/C process.
So Is it the issue that WV requires DPOAs be filed at the courthouse to be recognized? Mississippi does this. Or is it that the county courthouse requires an original DPOA specifically in order for a real estate transaction to be done?
I hope you don’t loose a buyer due to the time for guardianship to be done.
I know for TX there was a period(1989-1992) that dpoas had to filed with the county clerk but that apparently was hugely problematic so got 86’d. Now my understanding that it’s original dpoa mandatory only for nonMLS real estate transactions.
SpiritDancer, I’ve been executor now 3 different times & have never ever found it to ever be a 50% capture by probate courts. 1 of them involved “foreign” will which meant assets were in states other than the state of final residency, and even then it was fixed costs to get paperwork through. Most states have a set equation as to what executor can get paid (3%-7%) as well as fixed court costs. Awful lot of “estates” have no real a$$et$ but maybe a house or estate beneficiary life insurance policy, so executor fronts all costs till probate closed out. States often have lower priced probate court alternatives to traditional probate, like small estates affidavit or muniment of title actions that can be done often DIY if your comfortable in a CH. Like for TX, muniment is like a $700-$800 fee & 2-3 step filing sequence.
To me, the issue on crazy costs with probate is when
- there’s not a valid will so court has to determine heirship (&lineage) then get an administrator named & with oversight of estate by court for every action, OR
-litigation is involved... it then all becomes about family infighting. Add to that most probate guys in my experience do NOT do litigation ever. So it’s a smaller group of attys who do litigation and their fees are much much much higher. Totally different creature than the modest atty & legalcosts of the dad who dies with a valid will that can be filed & heirs all ok with terms of will & the named executor type of situation - that’s maybe 3k-5k all in.
Probate court issues to me get magnified as it’s info all publicly available. If you have the time or interest, you can troll the actual current filings at the CH. Probate court stuff is open records in all states to my knowledge. You don’t hear about expenses when Trusts are involved as trusts are totally private. Trusts hit the news when there’s major family $ & drama involved & it’s defunding. Otherwise trusts details all stay private.
For anyone likely to be dealing with probate & as executor, when you are appointed, you get a “Letters Testamentary” that names you as executor. Please please pay to get a lot of Letters Testamentary from the get go. What I’ve found is that now every single entity wants their very own LT original to do anything by you with an account held in the deceased name or on behalf of the estate. Not just the expected banks & life insurance co., but utility co., credit card co, etc. In the past a xerox of the LT was ok, but not anymore.
Letters Testamentary are like death certificates, get more than you think you need initially as it’s cheaper and faster at that point.
Also, you will need originals of your POA to file at the courthouse. Emails or copies will likely not be accepted. I’m currently proceeding with guardianship for my folks so I can sell the property to pay for their care. I had no original, signed copies of my POA. The county clerk would not accept copies.