Can a POA be passed on to the surviving spouse of my sister done without drafting up new documents? 29 Answers as of September 11, 2013

My sister and I currently have legal Power of Attorney with regard to our elderly mother. My sister recently passed away.

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
O'Keefe Legal Services, L.L.C.
O'Keefe Legal Services, L.L.C. | Sean P. O'Keefe
In Maryland, generally no; powers of attorney need to be created, and an agent's authority needs to be authorized, by the principal (the person who is designating the agent). Unless the document states authority is to "pass on" in your situation, it should not be allowed.
Answer Applies to: Maryland
Replied: 9/11/2013
Law Office of Thomas C. Phipps | Thomas C Phipps
No. Each attorney-in-fact has to be named in a properly executed durable POA.
Answer Applies to: Missouri
Replied: 9/5/2013
Law Office Of Victor Waid
Law Office Of Victor Waid | Victor Waid
If the two of you held a co-power of attorney, then the remaining person living holding the power would retain the power unless the provisions of the power indicate other wise, ie meaning the power dies with one of the holders of the power who dies. Look art the document carefully.
Answer Applies to: California
Replied: 8/30/2013
Sanford M. Martin, P.A. | Sanford M. Martin
If the terms of the POA allow it to be transferred to another person selected by the previous designated person or other person, it can be transferred, but it is likely that it cannot be transferred.
Answer Applies to: Florida
Replied: 8/30/2013
Edward L. Armstrong, P.C. | Edward L. Armstrong
No, the power is personal and cannot be "passed on." For this to happen your elderly mother (if she is mentally and physically able) must amend the power of attorney she gave your deceased sister and provide that your sister's husband will now "have that power." You need to retain counsel to help you with this.
Answer Applies to: Missouri
Replied: 8/30/2013
    Law Office of Nathan Wagner
    Law Office of Nathan Wagner | Nathan J. Wagner
    No, a power of attorney cannot be inherited. Your mother will have to sign a new power of attorney document.
    Answer Applies to: California
    Replied: 8/30/2013
    Law Office of David T Egli | David T. Egli
    Unless there is a provision in your mother's power of attorney that either appoints the surviving spouse to act as one of your mother's attorneys-in-fact or gives you the authority to name the surviving spouse to act with you as one of your mother's attorneys-in-fact, your mother will have execute a new power of attorney to appoint the surviving spouse as one of her agents or attorneys-in-fact. Powers of attorney, though, are governed by state law. So while I believe the above would be true in most states, it would be advisable to review the POA with an attorney in your mother's state of residence to see what effect your sister's death had on the POA and what steps, if any, can be taken to have her spouse appointed to act as a co-agent with you.
    Answer Applies to: California
    Replied: 8/30/2013
    Law Ofices of Edwin K. Niles | Edwin K. Niles
    No.
    Answer Applies to: California
    Replied: 8/30/2013
    Frederick & Frederick PLC | James P Frederick
    Not unless the form provides for this. If your mother still has capacity, a new form can be drawn up. Michigan just changed its POA statute, so having an updated form drawn up is probably a good idea, anyway.
    Answer Applies to: Michigan
    Replied: 8/30/2013
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    No. If both of you were given power, it should specify what happens if one is unable to act. If not, your mother needs to execute new POA.
    Answer Applies to: Oregon
    Replied: 8/30/2013
    Stephens Gourley & Bywater | David A. Stephens
    It cannot be passed on without the signature of your mother.
    Answer Applies to: Nevada
    Replied: 8/30/2013
    Law Office of Pamela Braynon | Pamela Y. Braynon
    If the original document did not specify a successor POA and your mother is coherent enough to create a new document, one should be done. Its hard to say who should be the successor POA if your mother is not coherent to do such. Normally it would be a family member by blood.
    Answer Applies to: Florida
    Replied: 8/30/2013
    Wood & Smith Legal Services, LLC | Emily Wood Smith
    If I understand your question correctly, the answer is no. Your sister's power of attorney cannot be passed on to anyone else, even her spouse. If an additional power of attorney for your mother is needed, a new power of attorney must be executed.
    Answer Applies to: Alabama
    Replied: 8/30/2013
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    No. An attorney-in-fact needs to be named by the maker to serve not another attorney-in-fact. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship.
    Answer Applies to: Nevada
    Replied: 8/30/2013
    Law Offices of R. Christine Brown | R. Christine Brown
    Your mother must draft a new power of attorney form if she wants to change her agents.
    Answer Applies to: California
    Replied: 8/30/2013
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    No. A POA is not property. When the attorney-in-fact dies, so does the POA. (And when the principal dies, so does the POA.) If your POA says that either one of you can act, then, and only then, is it valid.
    Answer Applies to: California
    Replied: 8/30/2013
    Gates' Law, PLLC | Thomas E. Gates
    The POA is only valid with the parties identified on the document. It is not passed on to another party if one the attorney-in-fact passes away.
    Answer Applies to: Washington
    Replied: 8/30/2013
    Estrada Law P.C. | Michele Ungvarsky
    Her power of attorney died with her.
    Answer Applies to: New Mexico
    Replied: 8/30/2013
    Durham Jones & Pinegar | Erven Nelson
    No. A power of attorney is personal and cannot be assigned. You still have your rights under the POA. If you mother wants to add someone else, she will need to execute a new POA.
    Answer Applies to: Nevada
    Replied: 8/30/2013
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    No, a power of attorney is limited to the persons named in the document. You are now the sole attorney-in-fact for your mother.
    Answer Applies to: Nebraska
    Replied: 8/30/2013
    Danville Law Group | Scott Jordan
    No, not generally. It depends on the what the POA says. Usually, a POA will list a successor (or secondary) agent if the original agent cannot perform the duties. Therefore, I would need to read the POA to determine who is next in line, if anyone.
    Answer Applies to: California
    Replied: 8/30/2013
    Law Office of Patricia A. Simmons
    Law Office of Patricia A. Simmons | Patrica A Simmons
    The document should have named an alternate in the event the primary agent is unwilling or unable to serve. In addition, the document should state if there are more than one agent, whether they are to serve jointly or independently, if the other is unable or unwilling to serve. Review the document.
    Answer Applies to: California
    Replied: 8/30/2013
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    No, unless you have the authority to name a replacement attorney.
    Answer Applies to: Idaho
    Replied: 8/29/2013
    Attorney At Law | James G. Maguire
    It depends on how the POA was drafted. When I do one I ask the person signing the POA what they want to happen if one of the persons with POA dies.
    Answer Applies to: Louisiana
    Replied: 8/30/2013
    The Law Offices of Kristen Carron, LLC | Kristen Carron
    No. Upon your sister's death, you would become the only POA for your mother. You sister's spouse would not be able to step in as POA in your sister's place, unless a new document is done.
    Answer Applies to: Rhode Island
    Replied: 8/30/2013
    The Law Office of David L. Leon
    The Law Office of David L. Leon | David L. Leon
    No. A power of attorney is not transferable. It died when she died.
    Answer Applies to: Texas
    Replied: 8/30/2013
    Arthur H. Geffen, P.C.
    Arthur H. Geffen, P.C. | Arthur Geffen
    The answer is no. The POA is probably worded to leave you as the sole attorney in fact.
    Answer Applies to: Texas
    Replied: 8/30/2013
    The Krone Law Firm, LLC | Norman B. Krone
    Not unless the POA stated that the spouse would be the successor.
    Answer Applies to: Florida
    Replied: 8/30/2013
    James Law Group
    James Law Group | Christine James
    It depends on how the power of attorney reads. Usually if one agent dies the other can still serve.
    Answer Applies to: California
    Replied: 8/29/2013
Click to View More Answers:
12 3 4 5 Free Legal QuestionsConnect with a local attorney