You need to discuss this with an attorney. If your father is not lucid enough to be judged of sound mind, then he would not be allowed to sign a POA. She would have to go to court, most likely, to be appointed his guardian. An elder care or family attorney would be the appropriate person to talk with. The procedures and actions covered by the POA and guardianship can vary from state to state.
If you feel you do not have enough money to pay an attorney for this advise, most places have free clinics or attorneys who do "pro bono" work. Check with your local bar association. Be sure your mother also has one in effect for when she may not be able to handle her own finances, health care, etc. And also you and your spouse, etc. Everyone should have a will and a POA. If your state does not allow living wills or healthcare directives to be included in your POA, then you will need one of those as well.
Sorry your Dad has AD. Your Mom should have got the POA long time ago. Now he can sign it barely so he may not be able to grant her POA. There are online POA forms from your state and you can also get the forms done from the attorney. The question is if Dad is good enough to sign. We still had my late FIL signed some IRS documents until this year. His signature was terrible. But my husband had POA and is the trustee.
If he can still sign somewhat, check with the attorney to see if this is not too late.
If POA is too late, Mom still has many ways to do it. Get the guardian is one way. But this is a lot of trouble. She has to go to the attorney and go through court so the judge can grant her the guardianship.
One indirect way is to have a doctor's signature/letter saying Dad is incompetent so Mom can do it instead.
Signing a tax return for someone for whom you do not have a POA- or other legal authorization- is a crime. What your state requires may be something else altogether. <People get turned away> who did not have a POA or other legal instrument.
Last edited by Administrator; 07-26-2012 at 08:40 AM.
Jason, welcome to the board. I am glad your found us but sorry that you have a need to be here. I am truly sorry you are having to deal with this disease in your father. But you have found a wonderful place for support, advice, and sharing! Please come back often.
I agree with all the advice you have received so far. Everybody needs to do the legal work to have their affairs handled if they are not able and very few seem to want to do that before disaster happens. Check with your local elder lawyer and hopefully it is not too late for your Dad. Also consider making yourself the alternate in the case your Mom is unable. She is aging and you have to consider that fact as well. Your Mom will want to do hers as well. Make sure you do both the financial and medical POA. Both are equally important.
Beyond that, hopefully your Mom's name is on most of what they have. This can be helpful especially with financial accounts and service accounts.
Anything federal is different. Many do not know that the POA papers are state instruments and have no bearing on Federal... except in very few situations. You will need to go to the social security office and have your Mom or yourself appointed as his payee with the social security/medicare system. You will need a letter of incapacity from his doctor saying he can not handle his daily financial affairs. This is different from a letter of incompetency! Then have the check direct deposited into his checking account. At some point they may require accounting as proof you are spending the money for him but that's an easy process if you keep good records. That will also allow the designated person to deal with his Medicare. As for tax return checks. You can not even deposit the check into his account without him, his signature, and a photo id. I know because I just tried!!! You do need a POA on file with the bank in order to do that. Federal checks are a PAIN.. so if direct deposit is possible go for it.
The whole process is a mind field of frustration but you can find your way through it with the proper legal paper work. I have been doing this for Mom and Dad for almost 7 years now Hint... if at first you get a no keep trying. You will find somebody that will be more helpful on the next call or a way to do what you need to do via the internet. You will learn the end around runs quick enough!
Again, welcome to the board and I do hope you can get this paperwork in place soon
Banks, securities firms, investment firms, the IRS, etc are all starting to ask for updated POAs. The reason is that some are done very short term- say during treatment for a particular ailment - and then no longer needed. They are CYAing in case of fraud, basically. Esp since all the new regulations concerning moneys since 9/11. So am not surprised at this. One of my friends was complaining about having to get a current one from his 92 year old mother for her investments. They told him every 5 years they would need a new one. I doubt she'll last long enough to do another. However, if the person is and continues to be incapacitated to the point they cannot sign a new one, legal measures can be undertaken to continue the one you have. Can't speak for what the IRS may want though!
In my state, NC, there is a difference between durable and situational POAs. All POAs are actually instruments of the courts and filed with the court. A durable is in effect until a new one is filed with and the old one receded by the courts. Situational POAs specify their period of effectiveness. So far I have had no trouble using Mom's POA and it is over 7 years old. Twice I have had to have the lawyer intervene with out of state companies but both times I have been successful.
That is why it is so important to go to a local elder lawyer.... each state is different!!
Last edited by Administrator; 07-26-2012 at 09:02 AM.
To reiterate what has been said, this is very state-specific. The information regarding experience in the state of NC is not true in my state, for example.
I've been able to sign federal tax returns for my husband with a letter explaining that I am his power of attorney and that he is incompacitated by Alzheimers (per advice of our accountant.) So far the returns have been accepted without a problem.
I'd suggest getting at least 10 originals of the Power of Attorney signed. A few companies have asked me for an original instead of a copy. Some companies have asked me to confirm that my husband's durable Power of Attorney is still valid, but I haven't needed to replace it.
If the guardianship petition is uncontested, the proceeding can go pretty quickly. Some states have expedited processes for this. The clerk of the courts that handle these proceedings (sometimes the Probate Court, but each state is different on this too) can tell you whether they have an expedited procedure that families can handle themselves, or if you'll need to be represented by an attorney. You'll probably need something like an Affidavit of Incompetency, certified medical records or other proof of incompetency. Clearly it's a complicated proceeding, so the Power of Attorney is generally preferable.
It's obvious but I still have to add that I'm not providing legal advice, and no attorney-client relationship is established by these suggestions.
Last edited by Administrator; 07-26-2012 at 09:01 AM.
I agree with the rest on this board, Teach, you need to see an elder care lawyer to find out what options you have in your state for both Financial POA and Medical POA. I also agree that you need to have a back up for your mom early on, she is getting older and this would take care of a possible future worry for both you and her. Wishing you well Teach
Last edited by Administrator; 07-26-2012 at 08:56 AM.