Can a parent appoint anyone as power of attorney? - AgingCare.com

Can a parent appoint anyone as power of attorney?

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Is it true that in California power of attorney goes to the oldest child? The oldest in this case is not what I would call reliable as this person has never done anything to help mother. Mother is 94 and of sound mind but bedridden. Mother has appointed her Daughter as power of attorney for health care and finances, as daughter has finances to help her mother.

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The two most important parts of the answers above are 1) that appointment of a POA is NOT automatic and has nothing to do with proximity or birth order! and 2) Having Power of Attorney NEVER MEANS that the person who becomes POA becomes legally OR morally FINANCIALLY responsible! It's just not true.

1) Designation of a POA must be done by the person granting the POA to WHOMEVER she or he wishes. I believe that sometimes people give Power of Attorney to one person for financial matters and one person for health matters, for example. In at least some states it's important that the individual seeking this loving -- and trustworthy support -- from another give what's called a DURABLE Power of Attorney, which continues even if the grantor becomes incompetent. Always important to seek legal help to so but it's not terribly expensive as it is a simple document for a lawyer to prepare, tho' any good one must be satisfied that your mother has the ability to make such decisions in her own best interest.

And 2) No POA — because of being POA — nor even any child (with SOME exception, PLEASE consult a lawyer!) has any legal responsibility for the debts or obligations of another including for the person for whom s/he serves as POA. YOU can obligate YOURSELF — on purpose or unwittingly, so pay attention to what you sign! — but not otherwise. READ THE ARTICLES ON THIS SITE! Better yet, consult with an experienced elder law attorney.

I cringe every time I hear one of those insurance commercials on television where the parent says they want to buy life insurance "so you children will not be burdened with my credit card bills, etc." No one is ever liable for another person's debt except in very limited circumstances specifically provided for by law. Invest in an hour with a lawyer — many free or low cost options are available!!! — before you assume anyone else's debts!

A Power of Attorney expires on death. If anyone -- friend, child or other relative -- engages the services of a funeral home, for example, you are definitely obligating yourself for the cost of those services unless the deceased has made pre-paid arrangements or there is sufficient money in the decedent's estate to pay those bills.

But the VISA bill or the mortgage or the car payment...NO! HOWEVER, the parent's ESTATE still may be obligated for such debts so children or other heirs may see their inheritance diminished by such payments of lawful obligations. But not from the heirs' OWN funds.

I am rather sure that debt holders are not even supposed to contact family members, although they certainly can contact a child who happens also to be Administrator of the estate, and some may try to contact and collect from ANYONE they can persuade to feel guilt about not paying off the debt.

I THINK — but do not know for a fact so you do need competent legal advice in your state — that the state laws (in about 30 states) that DO create any obligation on the part of kids for a parent's debts are typically concerned with medical bills not MasterCard. But if your parent owned anything back to Social Security or Medicare or Medicaid, consider all bets off...it's my understanding that all those governmental agencies WILL collect from the estate — including making heirs "pay it back" into the estate so that such debts can be satisfied.

So whether a POA "has finances to help mother" is irrelevant to whether she has any legal obligation to do so. In all likelihood, she does not. That said, I have been glad as a POA for my Mom that I had the resources (some $, my computer and a printer) to make multiple copies of hundreds of pages of records needed for her application for Medicaid, and pay postage, the occasional FedEx charge, the fees for copies of birth certificates to get her state ID or a death certificate to support her VA claim, etc. The POA can certainly pay such expenses ON BEHALF OF the person being helped out of that individual's funds (like my Mom;s or your Mom's funds) but if so the POA must keep meticulous records, ESPECIALLY when doing any reimbursement to himself or herself. I can afford to help my Mom in this way tho' there surely have been times in my life when I could not have -- and even now I can't afford to pay her nursing home bills or medical bills and would never obligate myself to do so.

Many of the questions asked on this site, especially financial ones, really do require that the questioner seek legal advice. You can best inform yourself in advance of such a meeting with an attorney (saving her time saves your money!) by reading the articles here and by "Googling" such topics as "children's liability for parent's debts" or "what's a Durable Power of Attorney?" Not everything you read on line is accurate (but the professional sites are more likely to be accurate than many of the things you read here) no matter how well-intentioned are we people who try to help. Best wishes, Lolli
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What if the 'oldest child' is in jail? Hasn't been in contact with the family in decades? A drunk/druggie, a gambler, a drifter, or just stupid as a box of rocks? "Congratulations, Oldest Child, you are automatically mom's POA". LOL, it is to laugh, no?
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The parent can name anyone they choose. There are three big things to consider -- honesty, dependability, and availability. The chosen person should be one who is able to get something done when it needs to be done and will use the money only for the benefit of the person.
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The eldest adult child doesn't automatically get the assignment of DPOA. It depends on a number of circumstances, one of them being proximity to the elder.
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At one time some states held the families financially responsible for aid to indigent elders, and the family would be billed for reimbursements for welfare paid out.
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Getting someone who is a professional fiduciary in some capacity might help, but the lack of actual reporting requirements when the POA uses money improperly is always an issue for a POA. Family may always question how you are using money ("I don't think she needs a cell phone, or I don't think she should go to the hairdresser so often, or I don't think she should buy gas for her friend when they go for a drive) but anything you can do to prove you are not stretching the payments into areas not directly for Mom is something you will not regret doing in the end. There may be more "niggling" but thats small compared to them realizing the money is going for her and not for you.
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Yes, your Mom could name anyone she trusts with that responsibility including a non family member but many times a mother will choose a daughter to be the POA. I live in California and my Mom chose me over my brothers. It is a huge responsibility when your parent no longer has the capacity (mental/physical or both) to take care of themselves. My brothers have not made this any easier for me as now they are concerned about how much $$$ they think they are entitled to, even though they do NOTHING to help her or myself. It can get ugly especially if there are any existing problems in the family structure and there are many days I wish I was not in this position. I never asked to be POA, it is what she wanted. If I could have seen into the future and saw what they would put me through, I think I would have thought twice. It's hard enough caring for an aging parent by yourself, it is horrendous when you are and continually get grief from your jealous siblings.
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A comment about your comment within the question.
..."Mother appointed daughter POA as the for health care and finances as the daughter has finances to help her mother...."
In my opinion the Daughter is NOT financially responsible for her Mother. The mothers finances should be used until she is eligible to apply for Medicaid. An adult child is not responsible to financially support a parent, or any other adult.
As POA she can help find resources that will safely provide for the health and well being of her Mother but that does not mean she has to provide financial support.
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I would strongly suggest that a parent make a non-relative professional the POA. Picking one sibling over the rest will lead to trouble.
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Any adult who understands what she is doing can appoint any adult to be POA. There is no "automatic" POA assignment.

The POA doesn't even have to be related.
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