What happens if a power of attorney dies?

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What happens if a power of attorney dies?

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My sister had POA and guardianship over my mother - My sister has since passed away, and now no one has a legal POA or Guardianship over my mother.
I went to an attorney and was told it would cost $5-7K to become the guardian.
My mother suffers from Dementia and is most days unaware of who I am.
She is in the local VA medical center, and has been for years. My father passed away 2 years ago.
I am at a loss as to what my legal status is. Any guidance would be appreciated.
Thanks

Power of Attorney (POA)

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As to the POA, you should be able to get a letter from her physician that she cannot handle her self mentally nor financially by herself. you can write a petition to the court, probate division and request to be appointed her power of attorney. If she has monies, the court may ask that an accounting be submitted on a monthly, or quarterly basis, which is simple, list her income and list how its spent. this will cost you $0.00. I worked with estates and trusts for over 20 years in Chicago with some great law firms. You can also go to your local law school and ask any instructor if the class can take you on as a project. they cannot offer you legal advice so you have to be prepared. seek legal advice as to the actual steps to accomplish that which you wish to and not just be quoted a 5-7k figure. Never go to him again. If there are no other family members, there is no one to dispute, so have your dad and sister's death certificates with you. I'm surprised only one name was on the POA, its usually more than one just for these situations. In the event you are successful, you should name yourself a successor in your documents, so you mother will continue to have a voice. You could fall ill and cannot serve therefore a successor needs to be named.
Best of Luck to you.

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The courts do not appoint POA - they do guardianship and stewardship. POA can only be appointed by the principle, in this case the mom. FRIENDS2018 stated clearly "My mother suffers from Dementia and is most days unaware of who I am.", which indicates that her mother is too far gone to be able to appoint anyone.

Suggestions made by others were to see if you can find less expensive legal assistance (SW, VA advocate, Council on Aging, etc). If mom has any assets, those can be used to pay for the court and legal costs, once approved. If not, perhaps one of the resources suggested or even the attorney who quoted the cost might suggest a legal aid group who could help for little or no cost.

I believe it was jacobsonbob who mentioned that the VA does not honor the POA - this applies to ANY federal entity (IRS, SS, pensions.) They all have their own process for assigning someone as representative. One other note - if mom's income was already assigned to the VA (direct payment), perhaps you could file the paperwork they require to be her advocate - if she has no assets or other income, and it already goes to them, you might not need to go the full guardianship route via the courts, but rather via the VA. Talk to administration there - they might be able to assist you in filing the forms needed.

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We had an elder care attorney walk us through the paperwork, and help us get it through probate. The bill went to my Dad since it was in his best interests to have someone else make his decisions. He had been deemed to not have the capacity for personal or financial decisions.
We did not need financial guardianship because the estate was less than $2000.
The total cost from the attorney was $1750. It was by the hour, which included a one hour meeting with us adult children.
Another few hundred for a background study by the police.
The social worker at the nursing home said many families do the guardianship through probate on their own. The probate court will walk them through it, she told us.

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Friends2018
I've been reviewing many of the responses and I'm not an attorney either, but I am still running toward the finish line so I can get some normalacy in my life.
1. Google State Laws. Big difference between Community Property vs Common Property Law.
2. Probate State? That opens another can of worms.
AZ is Community Property. One needs to have more than just a POA to take care of a parent(s)
a) Guardianship
b) Conservatorship
c) Representative
A POA is totally different than the above list. Need to know the differences between them and how they are used.
IF you live in a Probate State and Mom does not have a Will, the Court will decide how the Estate is settled.
IF the Court appoints a Guardian/conservator to a "professional", yes there are "professionals", Mom's estate will be paying out the wazoo to the point that you and other family members can be held responsible for any debt; any money paid for care by the State will become a debt to be paid back!!
I did Mom's Guardian/conservator via the help of a paralegal who should really be an attorney she's that great!
AFTER I was appointed, everything filed, Mom is now a minor and I'm the parent. Unless my siblings want to pay to take me to Court, they have to go with my decisions. When the time comes, I'll petition to become the Representative who controls the Will/Estate.
I ONLY had to hire an attorney AFTER my appointment BECAUSE I am taking my step-sister to Court for fraud. Otherwise, I could do everything on my own. I'm moving Mom's money over to a better Investment firm and they do the yearly budget required to file with the Court. I do all of the other bookkeeping reports.
DON'T let your Mom leave intestate!!
FYI, so far my attorney billing...$687 because I did what would have cost thousands of $$$ by having a paralegal help me get over the 1st hurdle. The billing for the required Court appointed Fiduciary...$1650 and he only had to make sure Mom and my step-father are mentally incapable of taking care of themselves or understand what is happening, show up to Court to give his $.02 in and leave!! I won't be able to get rid of him unless my Attorney can get the Court to dismiss OR once I get the appraisal/inventory done and agreement between me and step-siblings.
I'll keep the attorney because it's going to hit the fan in the end.

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Check to see if the original PoA paperwork designated a secondary. If not, then you are stuck getting guardianship as your parent isn’t able to sign legal papers.

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Can you breakdown the $5-7K cost? I'd be very interested to know. I have been advised by elder-law atty about guardianship. Does it have to do with hourly charge by lawyer for the time he/she puts in to facilitate the process --of which I am told could take as long as 2-3 months.

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My mother's D&M POAs name a primary and secondary as well as enable the secondary to name a new "secondary" when they assume the primary role on a permanent basis. Secondary is empowered to act whenever the primary isn't available but doesn't become primary until primary resigns, dies, or becomes permanently incapacitated.

For anyone who is preparing POAs I encourage you to consider this formula. Life is uncertain and an accident or unexpected illness can remove an option at any time. POAs need to stand the test of time - often a decade or two.

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Who is executor of your sister's will? - my hubby's great grandfather died 1931 but the family did not sell off the mineral rights with the land - there was a series of executors who were in charge & basically inherited the position from who they were executors for - about 2012 the last executor finally sold off the mineral rights - my hubby was 1/72 & got a few thousand $$ for his part & that was 81 years after the man died

Check where you live because you maybe able to piggy back this way - if you need to guardianship then MOM'S estate pays for it not YOU as is just & fair

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If she is in a VA hospital start with them. I care for my dad and had to deal with them first to be able to handle his benefits. I also have a POA on my father but for some things the VA doesn’t recognize a civilian POA.

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i did not have one for my mom no one seem to make a real big deal ..she went to a nursing home for 2 wks they would not let me know the meds she was on ..but they was a******s the other nursing home didnt seem to matter just as long as someone is taking care of her she passed away so as long a the family accepts you as primary care taker should not worry ..i think it just cost money if it does keeps someone happy so save money & if all family is ok with it no big deal .but tht is my opinion

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That's "on the cheap" for guardianship. Here in Maryland, it runs $7 to $9 K.

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POA and Guardianship are two different things. POA is a lot easier. You will need to fill out proper paperwork and get it notarized.
Guardianship requires a court hearing to show they cannot make their own decisions. If this is too much financially, there should be a Legal Aid in your area that you might qualify for. (FYI I am not a lawyer)

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Qquick ready answer

Find a paralegal (they work with attorneys but also have their own businesses on the side so to speak) who is EXTREMELY well informed regarding this issue.
The paralegal will help with the doc prep for motion to the Courtin most cases, file will even file the Motion for you.
From the start, the paralegal will help you through all the upcoming Court issues you will face.
PARALEGALS LIKE RNs KNOW MORE ABOUT HELPING YOU BECAUSE THAT'S THEIR JOB WORKING WITH THE ATTORNEY!
I did this BEFORE I had to hire an Attorney AFTER I became Mom's Guardian/conservator this past July.
The paralegal I had was ABSOLUTELY THE BEST. I live out of State and she did ALL of the filing etc for me....a flat rate of $750! The ONLY thing she could not do was being present in the Court room.
I represented myself (make sure all your ducks are in a row. Paralegal will help you) and I killed it!!!
ONLY reason I had to hire attorney....I'm taking step-siblings to Court for monetary issues. I will still need my Attorney after all is said and done....we all have them....those greedy family members who didn't care when the person was alive, but they want WHAT they THINK is theirs.

JUST BECAUSE ONE IS AN IMMEDIATE FAMILY MEMBER OR A FEW TWIGS AWAY ON THE FAMILY TREE, DOES NOT MAKE THEM A PERSON ENTITLED TO AN INHERITANCE!!

****make sure you research the paralegal you're thinking of hiring. I did, she's wonderful AND we still communicate with each other. I love her like a daughter/friend****

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Hm. I would recommend talking to the VA social worker, there should be one for the facility where your mom is.

What you should ask is what is their process when a resident is permanently incapacitated and has no durable POA for general affairs and finances?

The details vary from state to state, but in many cases, if the court considers guardianship, they are often inclined to choose family if any are available and seem reliable.

You could ask the VA social worker if there is any way that the VA might be able to help initiate such guardianship proceedings, perhaps that would make the process more affordable for you?

Otherwise, in most states, the law usually allows next-of-kin to make essential medical decisions, even if no DPOA has been signed. The VA social worker should be able to tell you how this would work at your mom's facility and VA medical center. Good luck!

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If she is incompetent she can not transfer durable power of attorney to anyone.

A person with dementia can still be deemed competent to appoint a DPOA, by a court. It depends on her level of dementia.

If she is still somewhat capable of cogent thinking, and will not object to you having DPOA, I think you need to become her Durable power of attorney or DPOA, asap, before she slides further into dementia.

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Additional thoughts:
1) If mom is not deemed competent, she cannot assign anyone as POA
2) If anyone has/had POA, guardianship overrides that.

Not sure why your sister would have POA AND guardianship. If she had to go with guardianship to avoid someone else overriding her POA, then the POA is null and void.

A VA advocate would be helpful. They can probably guide you and present what options you might have, but in the end, unless you feel extremely competent about tacking the court system yourself to apply for guardianship, your best bet would be to hire a competent EC attorney. Depending on how well mom can present herself, the courts can hire an attorney for HER, who might fight your request (see Vonclary's post!)

If mom has any assets, those should be used to pay all the legal fees incurred (if she does not have enough, you may have to help...)

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Certainly the state of residence and county residence will play a large role in the answer for you. Without knowing the above information it is very difficult to answer your questions. Your sister most likely had an attorney representing her legal standing as Guardian and Power of Attorney. Your best answer would be to consult that attorney. One question regarding Guardianship, you might ask is if you personally must pay the legal fees or if your mother (through her bank and at the direction of legal documents) is allowed to pay. Power of Attorney is another matter in most states as it would seem your mother no longer has capacity to appoint you or any one as Medical POA.

I hope this helps a bit. Sometimes it helps to take this one step at a time even when financially it may seem to best lump everything into one legal basket, so to speak.

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My mom was just diagnosed, with dementia, and I have had to file papers, with the local county court, for guardianship and conservatorship. She has fought me every step of the way. I would contact the court and see if you can bypass a lawyer. My total cost for lawyer has been $1750 for temporary and permanent guardianship & conservatorship(we live in Georgia). If there is an easy and inexpensive way, then I hope you find it. God Bless!

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You stated she is in a VA facility. VA will assign her an advocate. I was POA for my dad and he still had an advocate. Have you applied for Aid & Assistance from the VA?. The advocate will help you do it. A&A is a monthly pension for her care. Many veterans aren't aware of the program.

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It must be kept in mind that there are financial considerations--one's assets can't be over a certain amount (as I recall it was something like $60K) to be eligible for A&A from the VA.

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I do not believe the court system can appoint you as POA, however the guardianship and stewardship (or conservatorship) for mom can be obtained via the court system. The first is for making personal/medical decisions for your mom. The second is for handling her finances/assets.
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My understanding is that this is not cheap and it will take time before and after (you have to keep meticulous records of how you are spending her money and report that to the court on a regular basis.)

IF mom has enough assets, the court costs would be covered by those, not yours. If no one in the family steps in to do this, the court will appoint a third party. If mom does have assets, I would recommend against letting that happen (if it did, I believe you can petition the court to reassign these duties to you or another family member.)

If mom has no assets and/or is on Medicaid, perhaps you would only need to get guardianship, just to protect her - no need to make extra work with the finances. I think Medicaid pays directly to nursing homes (and some ALs) and in many cases SS can be assigned to them directly as well.

Anyone else out there who knows for sure, chime in! It will likely vary from state to state, but the basis should be the same. We had all the proper documents (including a backup/co-DPOA) set up in time and she has enough assets that we are self paying, so no court or Medicaid to deal with!

Be sure to find a competent attorney who knows all the ins and outs. Most likely this will be an Elder Care attorney (was the original who drew up the POA EC atty? If so, unless you have good reason not to, I would recommend using that attorney.)

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There was no POA in place when our father died unexpectedly in June this year. For the last 7 years he was my Mums full time carer. As she has Alzheimer’s disease and lacks the capacity to appoint us as POAs, my brother and I are applying for a ‘Deputy Order’ to appoint us to look after our Mother’s financial affairs under the supervision of the local Court. The DO is much more costly (£950 lawyers fee+£400 court costs) than the POA cost (approx £250 in the UK). This is our only option but will allow us to protect our mothers interests by acting on her behalf. Rather than applying to be appointed as her guardian, there may be a similar arrangement to the Deputy Order for you & your mother in the USA. It may be best to speak to a lawyer specialising in POA and Estates and a Legal Aid advisor in case you need to cover the legal fees initially. The legal process for our application will take about 8 weeks, we are keeping records and receipts for anything we spend on my Mums needs. So far we have had to pay for care home fees, fathers top up funeral costs (he had a plan in place which covered 2/3rds of the cost), Mums emergency dental treatment as her teeth were damaged in a fall last week. My savings are running low as I had to stop working for a few months, to be here for my mother and get her settled into a care home. If we had set up a POA when my mother was fully compus mentus, it would have saved a lot of money in legal fees and reduced the stress now being experienced.
Good luck with your situation, hope you find a suitable solution.

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I don't know who told you the cost, but most POAs list a "...in the event of..." and name another person when the named POA is incapacitated, dies or no longer wishes to serve. Your doctor can write a letter stating your mother cannot mentally handle herself. Research your state but here is a link to a sampler

law.cuny.edu/academics/clinics/elder/Becoming-A-Guardian-Without-A-Lawyer.pdf

Good Luck

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I live in Indiana. I am my moms court appointed guardian the instructions were if for any reason i can not carry on as guardian I am to notify the court. You should notify the court. Soc should be notified as you sister was probably the payee.

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Are you the eldest? Does she have a will? If so go back to the original lawyer who did it and petition it, the court will send you papers and designate you poa. I hope that helps. I'm sorry for your loss and troubles. I'm parentless now and I'm only 32, hence I'm now ill so. Just hang in. Can she still talk. That is another question. I'm assuming not. I apologize. If so that is it. She appoints you. Much love. God bless, jo. Write me if you need to ❣

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You can become the medical surrogate, which you would do at the nursing home with the social worker. This does not give you any power over her finances. At least you will be able to decide medical issues and talk to her Dr.

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I guess the obvious question is, when the POA papers were drawn up, was there no contingency for if the primary POA dies? If you were not designated secondary POA, as I am with my mother then you don't have a legal status as far as formally making decisions about money or her care. You would be "next of kin" but if you wanted to dispute or make an alternate plan of care beyond what her doctor is recommending, you would need to be the guardian. I would start by talking to the social worker at the facility to determine if a decision would need to be made, how would they handle it? Seems like the facility would be looking for an appointed decision maker or would institute guardianship proceedings to get one appointed.

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You could ask the nursing home people how to go about this. They might know what to do. You could go to your Council on Aging and ask if there is a free lawyer available.

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In a case like this the Court would appoint a Guardian. (If you do not wish to become Guardian)
Any costs come out of your Mothers estate you incur no costs.
contact the court where the process is heard, the Guardian must file annual paperwork showing the status of the Ward. So where ever that is needs to be informed that the Guardian has passed away.

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Unfortunately, if there was no second-in-line POA to serve for your mom if the primary could not, now that your mom has dementia, if she’s been deemed incompetent, she will not be able to legally sign papers appointing you. Sometimes, in the early stages of dementia, like with my mom, she was still competent enough to sign the POA papers.

To have control over Mom’s finances and make decisions for her care, etc., you will most likely need guardianship. You can ask the attorney if there’s any other way, but I don’t think there is.

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