How do I solve this POA quandry for resigning? 31 Answers as of March 26, 2013

My husband was found to be in stage 4 liver terminal cancer. He is no longer competent, is in Hospice - He is POA of his Mother (95 years old and is incapacity proven) - husband's brother is noted on their mothers POA forms. If my husband resigns or is unable to preform the duties as his mothers POA.

Husbands brother wants a signed resignation letter from husband (Which is not able to do any thing or formal letter or verification of my husbands incapacity. Where do I go for that? Hospital and now hospice are not assisting me with anything to send, to verify the incapacity so far.

I am POA for my husband. I don't even know what I am supposed to do or where to go with his brother's request. This has become very upsetting for me. Husband was diagnosed with cancer on March 15th, 2013. Is being given 3-6 months but may be less.

Please - I need guidance on this.

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Law Offices of Frances Headley | Frances Headley
If his doctor will confirm to you your husband's incompetancy then you can do the resignation letter on his behalf under your power of attorney. If you need assistance with the process, you should consult an estate planning attorney.
Answer Applies to: California
Replied: 3/26/2013
O'Keefe Legal Services, L.L.C.
O'Keefe Legal Services, L.L.C. | Sean P. O'Keefe
In Maryland, your husband may not be required to write/sign anything to resign as agent for his mother, and from what you wrote he may not have the capacity to make a written resignation. If your husband's brother wants something in writing to show your husband's resignation or lack of capacity to serve as agent for their mother, then you may want to see if one of your husband's doctors can make a brief letter stating the circumstances surrounding the lack of capacity, or you may want to make the resignation for your husband as his agent (if you are authorized under his PoA).
Answer Applies to: Maryland
Replied: 3/26/2013
Durham Jones & Pinegar | Erven Nelson
Since your husband's mother's POA states that the bother can perform the duties if your husband is unable to do so, you should be able to work out a solution quickly. I suggest that you get a written note from your husband's doctor stating that he is incompetent to perform the POA duties, and give the note to your brother-in-law. He should then be able to act under the POA.
Answer Applies to: Nevada
Replied: 3/25/2013
Law Office of Pamela Braynon | Pamela Y. Braynon
If you are your husband's POA, you act in his stead and can write the resignation letter for him and sign it with your name as POA of your husband.
Answer Applies to: Florida
Replied: 3/25/2013
James Oberholtzer, Attorney at Law
James Oberholtzer, Attorney at Law | James Oberholtzer
The best you can do is write a letter to your husband's brother and tell him that he is no longer competent to handle any legal affairs including a resignation under the power of attorney. If you want to make it more official looking have your signature notarized and attach a copy of your power of attorney appointment signed by your husband. That should be enough for him.
Answer Applies to: Oregon
Replied: 3/25/2013
    Frederick & Frederick PLC | James P Frederick
    I would suggest that you sign a resignation letter as agent for your husband. If the brother will not accept that, the only alternative would be getting letters from the doctors or hospice that your husband is incapacitated. If your brother-in-law gives you grief over this, then I would let HIM figure out what HE needs to do to get authority to act for his mother. You are being nice trying to help with this, but this is not your problem.
    Answer Applies to: Michigan
    Replied: 3/25/2013
    Alison Elle Aleman, Attorney & Counselor at Law
    Alison Elle Aleman, Attorney & Counselor at Law | Alison Elle Aleman
    If your husband is POA for his mother, until and unless he is unable to be, then his illness has already determined that his POA is no longer valid. The next POA, i.e., her other son, should now take over. No resignation is necessary from your husband-if he had already died, no resignation would be possible.
    Answer Applies to: California
    Replied: 3/25/2013
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    So husband's brother is an alternate agent on mom's POA. Her POA should say under what conditions he steps in to act. It may only require a letter from your husband's doctor saying that he is unable to act as his mother's POA. I wonder about your husband's brother. If my brother had terminal cancer and 3 months to live, I hope I'd be a little bit kinder than to be storming about POA for Mom. What really needs to be done for Mom? At 95, she must be in care, so it's write one check a month to the care center? If your husband's brother will work with you, you should be able to work this out. If he's in a hurry to get POA, is he planning to drain all Mom's accounts? Anyway, POA should say how alternate takes over. If it does not, there may be little you can do for brother in law. The way you describe his behavior raises my index of suspicion about his plans and goals. Maybe a conservatorship for Mom is not a bad idea, so that there is court oversight into how Mom's money is spent.
    Answer Applies to: Oregon
    Replied: 3/25/2013
    Law Offices of Phillip Day
    Law Offices of Phillip Day | Phillip Day
    Why would husband's brother want a formal resignation letter? The original POA should state something to the effect that if husband cannot perform the duties as agent, dies or is incapacitied then brother is appointed. At least that is what I understood from your question. It is automatic. What brother should be asking for is some letter from a physician or affidavit from a health care provider that the husband is no longer able to handle financial affairs and thus "incapacitated". Brother sounds like he doesn't want the duties. If that is the case, ultimately mother will have to have a guardian appointed by the state if no one steps up and that will eat her estate to nothing. Brother should want to take care of mom out of love but if not that, then for money which he could inherit if he protects it. Otherwise, it'll all go away.
    Answer Applies to: Florida
    Replied: 3/25/2013
    Charles M. Schiff, Attorney at Law
    Charles M. Schiff, Attorney at Law | Charles M. Schiff
    If you have a valid P.O.A. for your husband, you can sign the resignation in his place. If your husband resigns as P.O.A. for his mother there is no need to have him declared incompetent.
    Answer Applies to: Minnesota
    Replied: 3/24/2013
    Law Office of Patricia A. Simmons
    Law Office of Patricia A. Simmons | Patrica A Simmons
    Your mother-in-law's DOA should have designated an alternate to step forward in the event the primary attorney in fact is unable or unwilling to serve. The DOA should have specified when the alternate's responsibilities/duties will commence, if the primary is unable to act.
    Answer Applies to: California
    Replied: 3/24/2013
    Law Offices of R. Christine Brown | R. Christine Brown
    I am so sorry that the hospital and hospice are making a stressful situation more stressful for you by not giving you a letter regarding your husband's incapacity. I would ask one of your husband's treating physicians to sign a letter stating he's incompetent. To help the doctor out, if I were you, I'd write the letter for your doctor to sign. Leave it with his office manager and do regular daily telephone follow ups, so you can go by and pick it up.
    Answer Applies to: California
    Replied: 3/24/2013
    R. Steven Chambers PLLC | R. Steven Chambers PLLC
    Will your husband's brother accept your husband's resignation signed by you under the POA you have from your husband? If so that would solve the problem.
    Answer Applies to: Utah
    Replied: 3/24/2013
    Law Office of Edward M. Burgh, APC | Edward M. Burgh
    Go to person who diagnosed your husband and get a letter of his incapacity. That should do it according to the POA.
    Answer Applies to: California
    Replied: 3/24/2013
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    The advice here is to obtain for yourself the assistance of a estate/probate planning lawyer; the POA your husband holds is no longer valid as he lacks legal capacity to execute any document on behalf . as to the lack of execution power of the grandmother's POAS. That document is also legally infective due to her incapacity. Tell your husband's brother to back off, due to the incapacity of his brother to sign any document. As to your own POA, you can legally obtain and carry out any and all financial transactions needed for him; the advance healthcare directive is only for medical needs and give you the authority to act on his behalf.
    Answer Applies to: California
    Replied: 3/24/2013
    Estrada Law P.C. | Michele Ungvarsky
    I would suggest you ask your husband's physician to draft a short note stating that he is no longer able to serve as POA and no longer competent to conduct business affairs for himself or anyone else. It does not have to be long or detailed.
    Answer Applies to: New Mexico
    Replied: 3/24/2013
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    If the hospice or any organization associated with it has a social worker on staff, ask that person to help you. If no one is available, type up a short letter on your husband's behalf stating that he is resigning his position as Power of Attorney for [Health Care, Financial, or whatever the power entails] for his mother, effective immediately. Add a line for his signature and type his name underneath it. Then add two sets of four (4) lines. This will be for the witnesses signatures, their printed names, addresses and date of signing. Your husband will need to make some sort of mark (an X will do) on the line for his signature in the presence of the two witnesses. The witnesses can be anyone from the hospice staff, friends, total strangers just not family members. Then the witnesses sign the document. Make a copy for yourself and send the original to his brother. This should be sufficient to satisfy him and take the responsibility off your husband.
    Answer Applies to: Nebraska
    Replied: 3/24/2013
    Reger Rizzo & Darnall LLP | Kathleen DeLacy
    You, as your husband's POA can sign the resignation as his mother's POA.
    Answer Applies to: Delaware
    Replied: 3/24/2013
    Dennis E. Valentine Law Firm
    Dennis E. Valentine Law Firm | Dennis Valentine
    I am very sorry for your situation. You need to see an attorney to show the attorney the various documents and get advice based upon the specific POA documents that you have. You may be able to sign a resignation for your husband if you have authority to do that under the POA. That can only be determined after an attorney evaluates the various POAs that you mentioned.
    Answer Applies to: Colorado
    Replied: 3/24/2013
    Scott Polsky
    Scott Polsky | Scott Polsky
    As your husband's doctor for a letter on his letterhead stating his condition and that, in the doctor's opinion, he is incapacitated. That should alleviate your brother-in-law's concerns. If you need to, bring in your own doctor. Family doctor or oncologist will suffice.
    Answer Applies to: Pennsylvania
    Replied: 3/24/2013
    Kokish & Goldmanis, P.C.
    Kokish & Goldmanis, P.C. | Bernard H. Greenberg
    If your husband's brother is listed as successor agent in the mom's POA, the question should be resolved. If your husband cannot sign a resignation it should be explained to his brother. You could sign the resignation yourself using the POA from your husband which names you as agent.
    Answer Applies to: Colorado
    Replied: 3/24/2013
    Randy M. Lish, Attorney at Law | Randy M. Lish
    If your husband signed a durable power of attorney,, it should name an alternate power holder. If it does not, check to see if the power is delegable. If it is not, or the Durable Power of Attorney does not say, your only option will be to go to court and be appointed as guardian and conservator.
    Answer Applies to: Utah
    Replied: 3/24/2013
    Thompson Ostler & Olsen dba Franchise Business Law Group | Brooke Ashton
    First, it is a good thing that you are the POA for your husband. If your POA has broad enough powers, you can sign a resignation for your husband as his POA and send it to his brother. That would be the simplest thing.
    Answer Applies to: Utah
    Replied: 3/24/2013
    Law Offices of Charles R. Perry
    Law Offices of Charles R. Perry | Charles R. Perry
    If your husband is not capable of signing a resignation letter, then his brother is asking for an impossible act. The brother should find his own lawyer to advise him as to how to handle the situation. It may be that the brother needs to establish a conservatorship for his mother, so that he can exercise the necessary powers. A good lawyer, however, may be able to find a better solution. Indeed, the power of attorney itself may provide a guide to a solution in how to replace your husband as the holder of the POA.
    Answer Applies to: California
    Replied: 3/24/2013
    Winnick Ruben Hoffnung Peabody & Mendel, LLC | Daniel N. Hoffnung
    I need to see POA.
    Answer Applies to: Connecticut
    Replied: 3/24/2013
    Darrell B. Reynolds, P.C. | Darrell B. Reynolds
    I suggest you schedule an appointment with an attorney in your area to discuss this matter.
    Answer Applies to: Georgia
    Replied: 3/24/2013
    The Law Office of David L. Leon
    The Law Office of David L. Leon | David L. Leon
    I'm sorry to hear about your husband's condition. If he is not competent, then there's no way for husband's brother to get a signed resignation. If he needs a judicial determination for the mother, he can file for guardianship in probate court. Failing that, your husband's doctor can issue an opinion letter that your husband is no longer competent. That, coupled with the POA forms may get you somewhere.
    Answer Applies to: Texas
    Replied: 3/24/2013
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    You should sit down with an attorney who can draft a certificate of incompetency and impact to power of attorney or something similar. Your issues need to be addressed on an individual basis. The solution must be narrowly crafted, a web site like this is designed to determine if you need an attorney. I submit that you need to seek out qualified counsel in your area. Best of luck to you.
    Answer Applies to: Nevada
    Replied: 3/24/2013
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    Tell your husband's brother that your husband's incapacity makes acts as his resignation under the POA. Also, that your husband is unable to resign.
    Answer Applies to: Idaho
    Replied: 3/24/2013
    Attorney At Law | James G. Maguire
    The only immediate solution would be to have your husband declared legally incompetent, so that his brother could take over the POA, but this is a legal proceeding, and probably would not be resolved before your husband passes away. Your brother-in-law seems to be the person who wants to get this done. I would just make sure he knows about your husband's situation, and let him worry about it, since there is no practical way for you to solve his problem.
    Answer Applies to: Louisiana
    Replied: 3/24/2013
    James Law Group
    James Law Group | Christine James
    Your husband cannot resign. His brother can use the fact that your husband is unable to act in order to step in as successor. Can you provide your husband's brother with a doctor letter saying your husband is incompetent? If not, ask your husbands brother to go to court and have him affirmed agent under POA or file a conservatorship.
    Answer Applies to: California
    Replied: 3/24/2013
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