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:
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.
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.IMPORTANT INFO
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