Can a person have the power of attorney and be the executor of same person’s will? 26 Answers as of August 14, 2013

I have power of attorney for my 91 year old mom but she is now living with my greedy money grubbing brother. He is executor of her will. He wants the power of attorney. Can he have both if my mom is willing? Also she is becoming irrational. What do I have to do to invoke the power of attorney before she changes it?

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Christine Sabio Socrates Attorney at Law | Christine Socrates
A person can be both power of attorney an executor. In order to invoke the power of attorney, you need to look at the document itself and see what it says in regards to that. If it is a springing POA, then if under certain conditions, for example incapacity, you can act. It depends on what type of POA she executed.
Answer Applies to: Ohio
Replied: 8/14/2013
Law Office Of Victor Waid
Law Office Of Victor Waid | Victor Waid
Yes as to whether a person can hold both documents, but since you hold the power of attorney, you have the duty to manage the financial affairs of your mother, and I doubt your mother is lucid enough to execute a new power of attorney. Don't let your brother push you around on this, and if necessary seek a conservatorship of your mother person and estate.
Answer Applies to: California
Replied: 8/14/2013
Sebby Law Office
Sebby Law Office | Jayne Sebby
Power of attorney ends at the death of the person granting the power so, yes, a person can serve in both positions. As long as your mother is legally competent, she can assign power of attorney to anyone she chooses. If you believe your mother is no longer able to mentally or physically deal with her own affairs, you can petition a court to become her guardian and/or conservator.
Answer Applies to: Nebraska
Replied: 8/14/2013
O'Keefe Legal Services, L.L.C.
O'Keefe Legal Services, L.L.C. | Sean P. O'Keefe
In Maryland, the same person may be designated an agent under a power of attorney, and an executor under a will. Keep in mind that a power of attorney is only valid while the principal is alive, and a will is generally only in effect after the testatrix dies. The provisions within the power of attorney document should state what authority the agent (you) have, and when the authority is effective.
Answer Applies to: Maryland
Replied: 8/14/2013
Frederick & Frederick PLC | James P Frederick
Yes, the agent can also be Personal rep. It is possible that your mother could revoke your POA, even if she is incapacitated. The best thing to do would be to try to reach an agreement with your brother.
Answer Applies to: Michigan
Replied: 8/14/2013
    Gates' Law, PLLC | Thomas E. Gates
    One may be identified as Attorney-in-Fact for Power of Attorney (valid when alive) and the Executor of the Will (valid when dead). There is nothing you can do to invoke the powers before she changes it, however, if you can show the court she was not in her right mind to have made the change you may prevail.
    Answer Applies to: Washington
    Replied: 8/14/2013
    S. Joseph Schramm | Joseph Schramm
    If your mother wishes to change her power of attorney to appoint your brother she may do so. She would have to give you written notice of the revocation of the power of attorney and then execute another one appointing your brother as attorney-in-fact. However, if the power of attorney you have is durable and survives her physical or mental incapacitation you would still remain her attorney-in-fact if her behavior reached a point where her doctors felt that she would be mentally incapacitated . However, that condition is a lot different from exhibiting irrational behavior and doctors are usually hesitant to make that determination if the patient still can manage her own affairs.
    Answer Applies to: Pennsylvania
    Replied: 8/14/2013
    Kokish & Goldmanis, P.C.
    Kokish & Goldmanis, P.C. | Bernard H. Greenberg
    Yes, the same person can be both. If you are concerned about your Mom's capacity, you should consider filing a Petition for Guardianship and Conservatorship. Contact a lawyer who specializing in this before proceeding.
    Answer Applies to: Colorado
    Replied: 8/14/2013
    LAW OFFICE OF ROBERT I LONG
    LAW OFFICE OF ROBERT I LONG | Robert I. Long
    A power of attorney may be revoked at any time by the principal.
    Answer Applies to: California
    Replied: 8/14/2013
    Law Office of Edward M. Burgh, APC | Edward M. Burgh
    A POA ends when the is no longer living. I'd suggest you hire a Probate Attorney where she lives and ask him/her.
    Answer Applies to: California
    Replied: 8/14/2013
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    Absolutely. If your mom is legally competent she may make changes to her estate plan. There may be an issue of undue influence. If there are issues about your mother's capacity, you may want to consider filing tor guardianship. I suggest you meet with an attorney in the state where your mother resides to determine if filing for guardianship is an option.
    Answer Applies to: Nevada
    Replied: 8/14/2013
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    Nothing. Power of attorney only allows you to do those things that the principal would do if able only things for the benefit of the principal. So there really isn't anything to do except pay bills for the principal, make sure things get done. The one thing you can do is put together a complete inventory of everything your mother owns, and the balances in all her bank and brokerage accounts. Also, get your records in order from the time you've had POA what have her monthly expenses been? If brother gets her to sign a new POA, and money starts disappearing, you will be able to prove it.
    Answer Applies to: Oregon
    Replied: 8/14/2013
    Law Office of Patricia A. Simmons
    Law Office of Patricia A. Simmons | Patrica A Simmons
    Your mother may revoke the power of attorney given to you at any time. The power of attorney will terminate upon your mother's death. If you believe that your brother is taking financial advantage of your mother, you may want to report any elder financial abuse to Adult Protective Services. You may wish to speak to an Elder Law attorney about your concerns.
    Answer Applies to: California
    Replied: 8/14/2013
    Law Office of Thomas C. Phipps | Thomas C Phipps
    Yes. You can do both jobs.
    Answer Applies to: Missouri
    Replied: 8/14/2013
    Strickland Law, PLLC
    Strickland Law, PLLC | Jeffrey S. Strickland
    A person can serve as the attorney-in-fact under the POA and be named executor under the Will. A person must be of sound mind to execute a Will or POA. The POA controls what can be done. If your mom's mind and body are failing, it could be time to seek conservatorship over your mom. It appears you need to obtain legal representation.
    Answer Applies to: Tennessee
    Replied: 8/14/2013
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    A Power Of Attorney is to act for someone while they are alive. Being an executor does not become effective until a probate is opened and that person is appointed by the Court. She can revoke any Power Of Attorney at any time and appoint anyone she chooses as her new attorney-in-fact during her lifetime, provided she is competent to do so. You will also have to read the Power Of Attorney to see when the Power Of Attorney is effective now or if there is something that must occur for the Power Of Attorney to be effective, such as when she is incompetent to handle her affairs.
    Answer Applies to: California
    Replied: 8/14/2013
    James Law Group
    James Law Group | Christine James
    If she has capacity she can change it at any time, both the will and the POA. If your mother is making decisions that are not in her best interest, go to court and get a conservatorship. If you listen to no other direction on this issue, STAY ON TOP OF THIS. If your mom has already named your brother executor, he will likely do nothing for a very long time and perhaps spend her money or jeopardize her property. If he does not administer your mother's estate in a timely manner, go to court, file for probate yourself, and force him to do it by the book.
    Answer Applies to: California
    Replied: 8/14/2013
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    An executor commonly has a previous power of attorney. Your mother needs protection.
    Answer Applies to: Michigan
    Replied: 8/14/2013
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    Yes, he can be both and so can you. The POA probably has a provision as to what you need to do to invoke it, e.g. her doctor says she is incompetent. If she is incompetent, the new POA would be ineffective. You probably need to take the POA to an attorney and discuss it.
    Answer Applies to: Idaho
    Replied: 8/14/2013
    Arthur H. Geffen, P.C.
    Arthur H. Geffen, P.C. | Arthur Geffen
    Yes, but you need to realize that a POA is revoked upon death automatically. If you suspect she is not capable of revoking the POA given to you, you need to seek help from a local lawyer.
    Answer Applies to: Texas
    Replied: 8/14/2013
    Law Office of Pamela Braynon | Pamela Y. Braynon
    As long as your mother shows she is coherent and understands what she is doing there is virtually nothing that you can do. If she shows signs that she is unaware of what is actually happening on a consistent basis, you can see an attorney to seek guardianship over her due to her incompetence. That way not only would you have power of attorney but you will have court ordered control over your mother. For your purposes now your brother being the named the personal representative in the will has no meaning. Your mother is still alive. The will does not take effect until your mother passes away. If you have an objection at that time, you can express your objections. However, there should be a legally valid reason for him not to become the PR, i. e., he's an ex-felon, been fired from a job because of extortion or something similar, or something of that sort. Also if there are other siblings and they too object to him being the PR that might carry some weight.
    Answer Applies to: Florida
    Replied: 8/14/2013
    Ben T. Liu Law Office
    Ben T. Liu Law Office | Ben T. Liu
    The power of attorney is good only when the person is alive. Whether you can exercise the POA now depends on the language of the document. One can be both the agent of the POA and personal representative of the will.
    Answer Applies to: Michigan
    Replied: 8/14/2013
    Sanford M. Martin, P.A. | Sanford M. Martin
    Yes, in fact both responsibilities are common. A POA terminates at death; a will has legal effect upon death, so there is no conflict.
    Answer Applies to: Florida
    Replied: 8/14/2013
    Law Offices of Charles R. Perry
    Law Offices of Charles R. Perry | Charles R. Perry
    The same person can hold both the power of attorney and the right to be an executor after the person issuing the power has passed away. I do not understand what you mean by "invoking" your power of attorney. If your mother is competent and wishes to revoke it in favor of your brother, then she has the right to do so.
    Answer Applies to: California
    Replied: 8/14/2013
    Attorney At Law | James G. Maguire
    Your POA is valid unless your mother revokes it. She can change the POA as long as she is living, and is mentally competent to do this. The same person can have POA and be the executor after the testator's death.
    Answer Applies to: Louisiana
    Replied: 8/14/2013
    Vandervoort, Christ & Fisher, P.C. | James E. Reed
    She can always change it (so long as she is competent). Your brother can be both personal representative and agent under power of attorney.
    Answer Applies to: Michigan
    Replied: 8/14/2013
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