Question About Power Of Attorney???
Q: Both my mother and I live in California. My mother recently moved into an assisted living center at the age of eighty. She has lost her short-term memory, can no longer write, and I have had to take charge of her financial affairs. Every expert on such matters seems to indicate that one should make sure to have a power of attorney when one has an elderly parent in such a situation. I felt pretty good about the fact that I had arranged to secure one while she was still able to sign her name. Today, however, a friend told me that in doing so I would be responsible for any medical debts she might incur should she top out her insurance at some point after exhausting her assets. This friend said that it would have been much better just to forge her signature as needed. Have I made a mistake?
A: -First, a power of attorney doesn't generally subject the agent to any personal liability for the debts incurred on behalf of the principal. That's true even without protective language in the POA. The exceptions arise out of mis-use of the POA. Make sure you always contract using the principal's name, as follows: "Annabelle Nosuchluck by Junior Nosuchluck, Attorney in fact." Second, forgery is a crime. That would be an excellent way to create personal liability for yourself. Not only financial liability but criminal. It would be stupid. Third, a general POA, the sort you use to handle fiancial affairs, doesn't survive the incompetancy of the principal. You didn't directly say that your mother is not mentally competant. The facts that her memory is diminished and that she can't write, are not enough. So you are OK if she is not incompetant. But when incompetance comes, the legal effectiveness of the POA ends. And your right to use it ends. Personal liability arises from continuing to use it after it ceases to be effective. A Durable Power of Attorney for Health Care is different. The DPOA continues to be effective after the onset of incopetance. You need one of those too, but that's a different topic. So what to do about the POA that is needed for financial affairs. The best answer is a conservatorship. A conservatorship can be obtained either before or after the onset of incompetance. -I recently went through this same thing with my Father, though it was in TX. He is in a nursing home, but did not have a power of attorney in place when he went in. He is mentally incompetent, and I had to go to court to obtain legal guradianship with full powers of attorney. In TX , a durable POA doesn't give you the ability to make certain decisions the way full guardianship does. By all means consult a good attorney on this!!!
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