What rights does a power of attorney have? 11 Answers as of February 20, 2012

When two siblings have POA for a parent in a nursing home, does it require approval of both POA's to transfer parent to different nursing home? Also how does a third sibling get listed as POA when there is no contact with other siblings?

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THE HUBBARD LAW FIRM, P.C. | Donald B. Lawrence, Jr.
A power of attorney ("POA") is a written authorization by one individual called the principal (your parent) to another individual called an agent (whoever is named). If a person is incompetent, a traditional POA becomes invalid during the period of incapacity. By statute, a person can make a Durable POA ("DPOA"). Typically, a POA or a DPOA nominates one agent to act and a second as a replacement if the first cannot serve for any reason. Your question relates to moving a parent from one nursing home to another. This type of activity is usually authorized through a DPOA for healthcare. If a person is not the nominee of the incapacitated individual, the only way one can obtain control is to seek to be appointed as the conservator (financial matters) and guardian (health & custody matters) by a probate court. The court will consider the persons named in the POA unless the court is convinced that they are acting against the interests of the incapacitated person. As far as a third sibling getting named as POA, if the principal is incapacitated, only the court can make that decision.
Answer Applies to: Michigan
Replied: 11/1/2011
Martinson & Beason, PC
Martinson & Beason, PC | Douglas C Martinson II
It would depend on how the PoA was drafted as to whether both have to sign and act. As to why a third child can be named as PoA, that was up to whoever did the PoA. They have the right to choose whoever they want to be in charge whether they are around or not.
Answer Applies to: Alabama
Replied: 11/1/2011
Theodore W. Robinson, P.C.
Theodore W. Robinson, P.C. | Theodore W. Robinson
A Power of Attorney is limited specifically by the terms of the Power Document. That includes whether one or the other or both siblings must act together or may act separately. If there is no provision for yet another sibling to act in the Power of Attorney document, then that sibling cannot take the place of either of the others. Good luck.
Answer Applies to: New York
Replied: 11/1/2011
Harville-Stein Law Offices, LLC
Harville-Stein Law Offices, LLC | Dean D. Stein
The answer depends on how the Power of Attorney is written. It may say something like "Attorney-in-fact A and Attorney-in-fact B, acting together" would require both to act in unison, whereas language such as "Attorney-in-fact A and Attorney-in-fact B acting together or alone" would permit one to act, or the other to act. You should consult an attorney regarding your Power of Attorney's particular language.
Answer Applies to: Alabama
Replied: 11/1/2011
Asset Protection and Elder Law Center
Asset Protection and Elder Law Center | Shadi Alai-Shaffer
You have to read the POA and see what guidance, powers, and direction it provides to the POA. Based on that you can determine what can and cannot be done. Typically if it is a joint POA the POA's need to agree on certain actions they take on behalf of their parent. Another person or third sibling can only be added if the parent them self adds them to be a POA or if a court appoints them to act as Agent for the parent.
Answer Applies to: California
Replied: 10/31/2011
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    Only one person should have power of attorney. There is too much chance for mistake and confusion when more than one person is acting. A person with financial power of attorney does not have the authority to decide on placement in a nursing home. The Health Care Representative under an Advance Directive does, if the principal no longer has capacity. BTW, an agent acting under a power of attorney really doesn't have any rights at all, just responsibilities. You have a responsibility to do only those things your mother would do if she were able you should not substitute your judgment for hers. You should do her business her way, just as though you were her employee or her lawyer.
    Answer Applies to: Oregon
    Replied: 10/31/2011
    Broad Law Firm, LLC
    Broad Law Firm, LLC | Donald K. Broad
    It depends on what the POA actually states, but generally, when there are two or more people with POA, either one can act on behalf of the person who granted the POA. As far as adding anyone to the POA, only the person granting the POA can do that. If they are no longer mentally competent to sign that document, it cannot be done. You should consult an estate planning/probate attorney in your area.
    Answer Applies to: Indiana
    Replied: 2/20/2012
    Martin Barnes - Attorney at Law
    Martin Barnes - Attorney at Law | Martin Barnes
    These are very good questions. The powers that are included in the appointment depend upon how it was drafted, as are limitations in the exercise of those powers. The determination of who will be appointed as attorney-in-fact (in a power of attorney) is dependent upon your parent's decision. Consult with an attorney that you trust to gain a more complete understanding of your parent's rights and the power of attorney appointment.
    Answer Applies to: Indiana
    Replied: 10/31/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Only one person should have a POA at one time, so you have a legal mess. See a lawyer. (And a regular POA usually will not cover health care decisions; that is done by a health care directive).
    Answer Applies to: Georgia
    Replied: 10/31/2011
    Law Office of J. Brian Thomas
    Law Office of J. Brian Thomas | J. Brian Thomas
    Generally speaking, agents under a Power of Attorney have the ability to make the same decisions that the principal (the parent) could, subject to any restrictions or limitations outlined in the Power of Attorney itself. When multiple co-agents are appointed, the document will typically state whether decisions can be made by one agent, or if they must be made unanimously. If the document is silent, the prevailing presumption is that each co-agent can act. As for a third sibling being listed, it wouldn't make any difference if they have no contact with the other siblings. Appointing an agent isn't up to the other agents. It's up to the principal, or the parent in this case.
    Answer Applies to: Texas
    Replied: 10/31/2011
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    A power of attorney appoints an attorney in fact or co-attorneys in fact. The document itself will set forth the terms and conditions for decision making assuming it is valid under state law. If one person is named as the attorney in fact and the other as a successor, then the named person makes the decisions and the successor only makes decisions in the event that the first named person is unable to do so, i.e., dead, incompetent, etc. Without reviewing the document, it is difficult to assess the rights. Also one can only ne added as an attorney in fact in the maker of the power of attorney still possesses the requisite capacity to make a new power of attorney to name that person as well. If no one is available to make decisions and the maker of the power of attorney no longer has capacity, guardianship may be necessary. We charge $100 for a one hour consultation with an attorney who will provide you with important information regarding your specific case and will able to advise you on the options that you should consider in determining your next steps.
    Answer Applies to: Nevada
    Replied: 10/31/2011
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