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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 88125
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I have serveral questions, about 12, that I need help with.

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I have serveral questions, about 12, that I need help with. They are mainly regarding my mother and Power of Attorney. I live in SC and she lives in FL, so it has been difficult to get some answers because of different state laws and her brother and mother have been very difficult to get along with and get answers from. Let me start off by saying that my mother and father finalized their divorce earlier this year, after almost 3 yrs of deliberating. My mother recieves monthly alimony checks and recieved half or my father's IRA funds. Out of the alimony my father pays her car payment until the car is paid off and her health insurance, the remainder is deposited into her banking account. My mother has been living in FL since they first seperated over 3 years ago. She is not in the best of health and is also an alcoholic who has been in and out of rehab so many times I've lost count. It has come to my attention and my 2 brothers, that my mother has signed over Power of Attorney of ONLY her finances to her brother and perhaps her mother on October 9, 2012. There are several issues with this. My mother has no real relationship with her brother and has not for almost 20 years. Which boggles our minds she would have signed anything to do with her finances over to him. I have contacted both my mother's brother and her mother and asked for a copy of the POA. They refuse to send any information to me or my brothers. 1) How can I obtain a copy of the POA? VERY IMPORTANT!! My mother does not know if her brother gave her a copy of it or not. With my mother's health issues, not just physically, but mentally we believe that she may not have understood what she signed. 2) How can we prove that she was not competent to sign over POA and does not (as I have talked with her about this) understand the POA at all or how her brother can take all her money? 3) Can her brother legally take out all the money in her checking account and put it in an account under his name? 4) Can he touch her IRA funds that she recieved from the divorce settlement? 5) Her brother stated that he would be in charge of paying her bills, but has not paid her car insurance. Should he be held accountable for that, although it expired in Aug, 2012 he said he would be responsible for all her bills and it was not paid to make current. This is important because my younger brother is visiting my mother because she is in the hospital at this time and he got in a car accident, only to find out that her car is uninsured. 6) Is my mother's brother supossed to be keeping close records, reciepts, etc of any of her funds he uses and what for? 7) Can he sell her house or car without her permission? 8) What is the difference between a Limited Power of Attorney and a Durable Power of Attorney? 9) My brothers and I would like to get a POA over her health descions for now. What is the best way to do this? 10) If we get my mother to void the POA she signed over to her brother how do we do this? 11) If we think it would cause to much friction in the family having POA over my mother's finances, who do people usually use that can be trusted to do the things she requests in her POA? Lastly, 12) If my mother has a Living Will, which she does, in the event of her death does that void all POA's she has?
One last note, since my mother is in the hospital now and will be going to a rehab center at her own free will within a few days, should she refrain from signing any legal documents regarding anything, even POA of health to us or voiding the POA she signed over to her brother, being she may not be mentally able to? We are hoping to get the POA she signed over to her brother voided as soon as possible without her having to sign anything and then figure all that out when she gets out of rehab. Would that be possible.
Sorry so many questions. Hope you can help in any way possible!!
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello, my name is Ely. I am here to help you. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not to tell you what you necessarily wish to hear. There may be a slight delay between your follow ups and my replies as I type out a thorough reply for you.

I am very sorry for your family's situation. Can you please tell me - would you be willing to file for adult guardianship for your mother in Florida and take care of her finances? I need to know what you would be willing to do so as to rectify the situation, so I can tailor my answer properly.

Thank you in advance.

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. I look forward to helping you.

Customer: replied 1 year ago.


I am not sure as to what an adult guardianship means. If it means that an appointed person can handle her finances and health decsions, then yes either I or my younger brother, who is a certified CPA, will be willing to do this. Can there be more than one guardianship?

Expert:  Ely replied 1 year ago.
Thank you, Laura. I am going to type out your answer now, and it may be a moment or two while I tackle all these 12 issues. Apologies for the wait in advance.
Customer: replied 1 year ago.


That's not a problem. Appreciate all the help.

Expert:  Ely replied 1 year ago.
1) How can I obtain a copy of the POA? VERY IMPORTANT!! My mother does not know if her brother gave her a copy of it or not. With my mother's health issues, not just physically, but mentally we believe that she may not have understood what she signed.

First of all, understand that as of now, you have no "right" to the POA. The POA is an agreement between two parties for one to be the agent of another. You have no right to the POA unless you file for guardianship. An adult guardianship is very akin to a guardianship for a minor. You would become the guardian and she would become the ward, and you can override her decisions, and control her actions. To do this, you'd have to file in court for adult guardianship, serve all interested parties including him and her, and have a court hearing. You'd have to show that she is not capable of taking care of herself.

If the Court grants you guardianship, then the POA is voided and guardianship takes precedent. See here for more information. While an attorney is recommended, one is not mandatory, but still, is best.

2) How can we prove that she was not competent to sign over POA and does not (as I have talked with her about this) understand the POA at all or how her brother can take all her money?

A party lacking mental capacity to understand the contract is not bound by it (Mahan v. Mahan, 88 So. 2d 545 - Fla: Supreme Court 1956), and this is is true of POAs as well. However, the contract is presumed valid unless it is voided in court. If you file for adult guardianship, then the POA will be voided anyhow, so you'd be hitting two birds with one stone by (1) voiding the POA and (2) attaining guardianship.

3) Can her brother legally take out all the money in her checking account and put it in an account under his name?

If the POA grants him blanket access to her financial assets, then yes. Of course, he may be ordered to refund the money if the court finds that he has taken it maliciously or has overreached the POA.

4) Can he touch her IRA funds that she recieved from the divorce settlement?

If the POA grants him blanket access to her financial assets, then yes.

5) Her brother stated that he would be in charge of paying her bills, but has not paid her car insurance. Should he be held accountable for that, although it expired in Aug, 2012 he said he would be responsible for all her bills and it was not paid to make current. This is important because my younger brother is visiting my mother because she is in the hospital at this time and he got in a car accident, only to find out that her car is uninsured.

The Court may order him to at least refund the money that he was supposed to use for the bills, but whether or not he himself would be liable depends on the mitigating factors. The Court may order him to pay any fees associated with late payments, etc.

6) Is my mother's brother supossed to be keeping close records, reciepts, etc of any of her funds he uses and what for?

Not necessarily. Generally speaking, a POA agent is not required to do so. A guardian for an adult does need to so if you or he and you become guardians, then the Court will expect an annual accounting (or, every two years).

7) Can he sell her house or car without her permission?

If the POA grants him blanket access to her financial assets, then yes.

8) What is the difference between a Limited Power of Attorney and a Durable Power of Attorney?

A LIMITED power of attorney is a POA that is only for one thing, i.e. to "sell a vehicle," or to "pay the bills," etc, and is active immediately.

A DURABLE power of attorney is a POA when the grantor (the person that signed it) is incapacitated, and only then does the POA become active.

However, these are terms of "doctrine," and in practice, the lines get mixed. In the end, the POA holder can do whatever the POA allows them to do.

9) My brothers and I would like to get a POA over her health descions for now. What is the best way to do this?

She can sign a POWER OF ATTORNEY which includes healthcare:

http://www.medicaidfilingservices.com/MFS_POA.pdf

Or, she can sign a LIVING WILL (same thing, appointing a surrogate):

http://ahca.myflorida.com/mchq/health_facility_regulation/hc_advance_directives/docs/adv_dir.pdf

But again, if she is not cognizant, then the signed form may be attacked as "invalid" by another interested party.

Or, you can file for adult guardianship and get the decision power from the Court.

10) If we get my mother to void the POA she signed over to her brother how do we do this?

To sign a piece of paper that voids it. example:

VOIDANCE

BE IT KNOWN, that on _____________________________________, _____ has
made and appointed a Power of Attorney over my _____. This power is now rescinded and the Power of Attorney is now void, along with any agency of it.

Signature

Name

________________________________ (SEAL)
Notary Public
State of
My Commission Expires:

11) If we think it would cause to much friction in the family having POA over my mother's finances, who do people usually use that can be trusted to do the things she requests in her POA?

An adult guardianship.

Lastly, 12) If my mother has a Living Will, which she does, in the event of her death does that void all POA's she has?

Not necessarily. The document signed last that affects her healthcare decisions would then be the one controlling, be it a POA with healthcare, or, a Living Will.

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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 88125
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 16 other Legal Specialists are ready to help you
Customer: replied 1 year ago.


Thank you so much!! This is VERY helpful and gest us started in the right direction to make sure our family is being cared for!!

Expert:  Ely replied 1 year ago.
You are most welcome and good luck!

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