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Tina, Lawyer
Category: Family Law
Satisfied Customers: 33167
Experience:  JD, 17 years legal experience including family law
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My father appointed me Durable Power of Attorney years ago. Now, at 90, he is now experien

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My father appointed me Durable Power of Attorney years ago. Now, at 90, he is now experiencing frequent periods of confusion. What steps do I need to take to make sure he doesn't make any unsound decisions that would affect his estate. Does he need to be formally identifed (by whom) that he is incpompetent?

What's to keep him from getting on the phone and making "commitments"? When I find out about new directives, can I overrule them with the Durable POA?
Hello and welcome,

Does the POA indicate that it becomes effective once he is found incompetent?

Does it provide any guidance as to how incompetency is declared, such as by a specific health care provider?
Customer: replied 5 years ago.

There is nothing in the document - that I can see - that indicates when or how incompetency is declared.

Here's the beginning of the doc:


General Durable Present Power of Attorney for John Doe (fictitious name).


I, John Doe, of the Town of South Kingstown, County of Washington, and State of Rhode Island hereby revoking all powers of attorney previously granted by me except (i) any power to deal on my behalf with the Internal Revenue Service granted by me using Form-2848 and (ii) any power to make health care devisions on my behalf, do hereby nominate my daughter, Donna Doe (fictitious name), of .... Connecticut, to be my true and lawful attorney, to exercise general control and supervision overall my property, whether presently owned by me or hereafter acquired by me, wheresoever located, with power:


.... to cash...., withdraw any or all money, to transfer property, to invest, .... (freedom to make any kind of finacial transaction)


... "to consult and employ legal counsel, investment counsel and custodial services;"


"to change my domicile whenever in my attorney's judgment such change shall be advisable for my physical well-being or for conservation of my financial resources;"


"to do anything and everything incidental or in any way conncected with the management of my property amd the conduct of ,y affairs and to do and perform each and every act which, in my attorney's judgment, shall be necessary or advisable to do in conncection with the foregoing as fully as I might or could do if personally present;"




"I hereby ratify and confirm all that my said attorney shall lawfully do or cause to be done by virtue hereof.


This power of attorney shall remain in effect notwithstanding any subsequent incompetency or disability on my part pursuant to R.I.G.L. 34-22-6.1.


In witness whereof, I have hereunto set my hand this 25th day of August, 2001.




The document is then notarized by his previous attorney (now deceased).


I think the intention of this Durable POA was to allow me to make decisions without the authority having to be verified at some point in time.


I have a warranty deed to his house in RI, which he holds in a living trust (?) until his death. He has started talking about leaving his property to his old high school to be used like a scholarship - yet he talks about keeping the property for me to use as well as my daughter. He's called the high school and someone is supposed to come and talk to him about the details. This is not a wise decision and I don't intend to undo the existing paperwork which would serve to create a huge capital gain.


He's also talking about flying to his home in FL and having a car salesman get him a car that he can use down there. I've witnessed him becoming confused with his whereabouts when he's within 1/2 mile of his home. His judgment is definitely impaired.


How can I ensure that he's not making foolish decisions? At times, he can be fully engaged and can think and talk logically and rationally. Short of eliminating his access to the outside world, I don't know how I can prevent him from inacting something of which I wouldn't approve. Where does the liability end?


I live in CT and he's in RI - and having him move in with me is not a possibility. I suspect he should consider moving to an assisted living / dementia community.


Thank you for your help.




P.S. Within the last few years, Dad went to a new attorney and had a medical POA created - though I don't have a copy - that appointed me his medical POA.

Customer: replied 5 years ago.



I'm calling it a night. If you could get back to me within the next day or so - with a start of what I need to do, I'd appreciate it.


Thanks, again.



Thank you for the additional information Donna.

What I would do in this situation is draft a letter to the entities with whom he does business along with a copy of the POA. The letter should indicate that you are acting on his behalf from this point forward and you should be contacted with regard to any decisions involving his assets.

It does not appear this POA is contingent on him being declared incompetent, but is already in effect and the best you can do normally is to alert those with whom he does business that he has periods of incompetency and you should be contacted with regard to transactions involving his property or other assets.

It is likely he will need to be supervised by someone either at home or in a facility in the near future.

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