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Power of attorney. Sc. My husband has current power of

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Power of attorney

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My husband has current power of attorney for his mother and her finances, my question is - if he were to pass away before her - who takes care of her and her fiances?

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Answered in 1 minute by:
3/19/2018
LegalGems
LegalGems, Lawyer
Category: Family Law
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Customer reply replied 4 months ago
None - just that question

If an agent (the person granted power of attorney) passes then the POA with regards ***** ***** person terminates automatically.

If the POA provides for a successor agent, then that person would then become the agent; if no successor agent is named then the principal would need to execute a new POA assuming they have sufficient mental capacity.

If the person does not have sufficient mental capacity an interested party may petition the court to be appointed guardian. Here is the statute on death of agent and successor agents:

SECTION 62-8-110. Termination of power of attorney or agent's authority.

(a) A power of attorney terminates when the:

(1) principal dies;

(2) principal becomes incapacitated, if the power of attorney is not durable;

(3) principal revokes the power of attorney;

(4) power of attorney provides that it terminates;

(5) purpose of the power of attorney is accomplished; or

(6) principal revokes the agent's authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.

(b) An agent's authority terminates when the:

(1) principal revokes the authority;

(2) agent dies, becomes incapacitated, or resigns;

(3) agent's authority is revoked pursuant to Section 62-2-507, unless the power of attorney otherwise provides; or

(4) power of attorney terminates.

(c) Unless the power of attorney otherwise provides and subject to Section 62-8-109, an agent's authority is exercisable until the agent's authority terminates under subsection (b), notwithstanding a lapse of time since the execution of the power of attorney.

(d) Termination of an agent's authority or of a power of attorney is not effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.

(e) Incapacity of the principal of a power of attorney that is not durable does not revoke or terminate the power of attorney as to an agent or other person that, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.

(f) The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked.

(g) Unless otherwise provided in the power of attorney, a revocation of a power of attorney must be executed in accordance with Sections 62-8-105 and 62-8-106 and, if the power of attorney has been recorded, then the revocation also must be recorded in the same county as the recorded power of attorney.

HISTORY: 2016 Act No. 279 (S.778), Section 1, eff January 1, 2017.

SECTION 62-8-111. Coagents and successor agents.

(a) A principal may designate two or more persons to act as coagents. Unless the power of attorney otherwise provides, each coagent may exercise its authority independently.

(b) A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office, or function. Unless the power of attorney otherwise provides, a successor agent:

(1) has the same authority as that granted to the original agent; and

(2) may not act until all predecessor agents have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve.

(c) Except as otherwise provided in the power of attorney and subsection (d), an agent that does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, is not liable for the actions of the other agent.

(d) An agent that has actual knowledge of a breach or imminent breach of fiduciary duty by another agent shall notify the principal and, if the principal is incapacitated, take any action reasonably appropriate in the circumstances to safeguard the principal's best interest. An agent that fails to notify the principal or take action as required by this subsection is liable for the reasonably foreseeable damages that could have been avoided if the agent had notified the principal or taken such action.

HISTORY: 2016 Act No. 279 (S.778), Section 1, eff January 1, 2017.

SECTION 62-8-112. Reimbursement and compensation of agent.

Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal and to compensation that is reasonable under the circumstances.

HISTORY: 2016 Act No. 279 (S.778), Section 1, eff January 1, 2017.

SECTION 62-8-113. Agent's acceptance.

Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by another assertion or conduct indicating acceptance.

HISTORY: 2016 Act No. 279 (S.778), Section 1, eff January 1, 2017.

SECTION 62-8-114. Agent's duties.

(a) An agent that has accepted appointment shall act:

(1) in accordance with the principal's reasonable expectations to the extent actually known by the agent and in the principal's best interest;

(2) in good faith; and

(3) only within the scope of authority granted in the power of attorney.

(b) Except as otherwise provided in the power of attorney, an agent that has accepted appointment shall:

(1) act loyally for the principal's benefit;

(2) act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest;

(3) act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;

(4) keep a record of all receipts, disbursements, and transactions made on behalf of the principal;

(5) cooperate with a person that has authority to make health care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and act in the principal's best interest; and

(6) attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including:

(A) the value and nature of the principal's property;

(B) the principal's foreseeable obligations and need for maintenance;

(C) minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and

(D) eligibility for a benefit, a program, or assistance under a statute or regulation.

(c) Except as provided in Section 62-7-602(A) an agent that acts in good faith is not liable to a beneficiary of the principal's estate plan for failure to preserve the plan.

(d) An agent that complies with subsection (a) is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.

(e) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.

(f) Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines.

(g) An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal is not liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person.

(h) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal's estate. If so requested, within thirty days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional thirty days unless otherwise specified by the court.

HISTORY: 2016 Act No. 279 (S.778), Section 1, eff January 1, 2017.

https://www.scstatehouse.gov/code/t62c008.php

Here is information on guardianships:

https://www.sccourts.org/selfhelp/FAQsFromACaregiver.pdf

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Customer reply replied 4 months ago
in English what does that mean ? would it go to me his wife or the grandchildren over 18?

It would go to whomever the POA (the document) names as successor agent.

If no one is named then it simply expires.

A daughter in law or an adult grandchild can petition the court to be appointed guardian.

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Customer reply replied 4 months ago
Can my husbands ex wife also petition the court also?

Yes; the court would determine the person who is best situated if there are multiple petitions. Generally they would want someone who has a current relationship with the principal and who can best care for her needs.

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Customer reply replied 4 months ago
Ok, thank you for the clarification.
Customer reply replied 4 months ago
all this was just 5.00
Customer reply replied 4 months ago
Do not charge my card for the 42.00 - it said only 5.00

You are welcome;

I don't have information on pricing/accounts as I am an individual contributor - please contact ww2.justanswer.com/help and they should be able to assist.

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