if you are POA can you give it up to the secondary POA without getting an attorney involved?

My mother is a Canadian Citizen and lived with me for over 20 years. last year my mother went to visit my sister in USA for couple of months and my sister got my mom to sign POA for personal and financial both. My mother was already suffering from partial Dementia. We were not told about this. We learned of this when she was admitted to hospital in Canada.. We know that my Mom did not know or understand what she was signing. There are two witnesses but no affidavit or authentication or certification obtained indicating that she was capable of doing this at the time. Now we are denied any access to her health care. My sister did this to control my mothers finances. What are the regulations on this? Is an affidavit required from the witnesses? How do we fight this?

Right, Kathleen, Social Security Administration does not, and never will recognize a POA. This is understandable because of all the fraud out there.
Power of Attorney ceases with the death of the donor.

I would ask my father's attorney to please write up a change of POA, there are special forms and have him assign the POA to either the next in line or perhaps you if the next in line is helping herself to Dad's money. The thing is, IF DAD IS STILL COMPETENT THEN HE AND HE ALONE GETS TO DECIDE WHO WILL BECOME HIS POA BY THE WAY IT SHOULD BE DURABLE POWER OF ATTORNEY. IF HE DOES NOT THINK THAT SECOND SISTER IS ROBBING HIM BLIND, HE MAY WISH TO MAKE AND KEEP HER AS HIS DPOA.

IF SAID SISTER HAS NOT SIGNED PAPERWORK AND FIRST SISTER HAS NOT SIGNED OFF, THEN SHE IS NOT DPOA YET, BUT IF, SHE IS STEALING FROM HER FATHER FOR HER OWN PERSONAL GAIN, IT IS AN OFFENSE AND SHE CAN AND SHOULD BE PROSECUTED. WHEN YOU TAKE THIS POSITION, YOU ARE BASICALLY SWEARING TO PROTECT FATHER'S ASSETS AND USE THE SOLELY FOR THE BENEFIT OF THE FATHER, YOU CANNOT PAY YOUR BILLS, OR EVEN FLY YOURSELF OR OTHER FAMILY MEMBERS IN TO SEE DAD, THAT IS NOT USING THE MONEY FOR DAD'S BENEFIT EVEN IF THEY ARE COMING TO SEE HIM.

IT IS A VERY SAD STATE OF AFFAIRS THAT ANY PARENT WOULD TRUST ALL THEIR WORLDLY GOODS TO ANY PERSON, CHILD OR NOT, AND THEY WOULD WIND UP CHEATING THEM AND SQUANDERING THEIR MONEY....IN MY OPINION THEY SHOULD BE THROWN IN JAIL!!! AND MADE TO PAY RESTITUTION!!!!!

For confusedelder:

1. You don't need an attorney to exercise POA. You just need a copy of the POA and a doctor's letter saying that the person is incompetent (or whatever conditions are written into the POA). For the secondary POA, they also need a letter saying that the primary can't do it. A letter from the primary should be sufficient.
2. It's hard to take back a POA once it is invoked. You'd have to go to each place she has used it and tell them it is re.voked. I guess the primary could do that. You also need to get the POA docs back from her, lest she use them later.
3. If she is signing your dad's name on checks, she is NOT exercising a POA. As POA, you sign "Your Name, attorney in fact for Dad's Name". And the bank will require a copy of the POA docs. What she is doing could be considered stealing, especially if she is paying her own bills. You can call the Elder Services for your state and report it. If the elder is incapacitate, it's not necessary for them to report it themselves. Maybe you can just get the checkbook away from her and monitor his finances to make sure she hasn't used her POA elsewhere.

For expressor1:
I'm the representative payee for my husband's SSD. It wasn't that hard to get although I did have to visit the SS office a couple of times and it took many months. I needed a note from his doctor saying that he is not capable of managing his own affairs, but that was easy to get. You need that letter to exercise a conditional POA anyway. The letters they send you are fairly incomprehensible, but I called the office each time and got advice. The people were nice, even if the bureaucracy was not.

Two problems with being a representative payee are:
1. You're supposed to put the money in a separate account from your family money, which might require shuffling money around each month to pay bills.
2. You have to fill out a form each year to show how you spent the money on his behalf. So much for food, for shelter, for medical, for savings, etc. It's annoying to have to keep those kinds of records. I've only been doing this for two and a half years, so I've only sent in one such report. I don't know how fussy they are about it. I didn't have to prove any of it, just give them numbers. They don't ask for account numbers or anything. I didn't have any savings to report because his expenses were more than the SSD and that didn't seem to be a problem.

One thing that scared me was that I didn't have to prove that I was authorized to do this. I just did it. Maybe being a spouse helped. I don't know what their process is when the RP isn't the spouse, as in your situation.

They mailed a letter to "his" address to tell him I was planning to take control and later that I had done it, but if you control the mail to the elder, they'd never see it. Seems like SS ought to have more controls in place, although I can see that it would be a real hardship for most people taking care of their relatives to prove something like that.

Expressor1,
I have a financial & medical power of attorney for both my parents. Mother passed on July 27, 2013. I guess maybe that undid the poa, but I am only child & there is no money of theirs so I am the only one in the will as well. Anyway, any insurance companies (not Social Security) but Medicare, Supplemental like Blue Cross, AARP or Part D plan company (all but SS) will take a fax of your POA papers, both med. & fin. I would just fax both if you have both. They will also send you or your parent a form (in lieu of or as well as) that will allow you to fill it out & return signed maybe by parent. Don't recall. Once that signed form is on her record you will be able to call & receive all info on the case. No info will be restricted to you. This worked at AARP for mom's supplemental, this worked at Blue Cross for dad's supplemental, this worked at Medicare, this worked at the Part D (drug plan) insurance company, and it has been a major time & life saver to just be able to call & pay each month or get info on coverage dates & so on. If the POA you have is not sufficient to them, the form signed by mom or dad should be sufficient. Then whenever you call them lets say to pay by phone for the month's premium you will be asked your name, patient's name, patient's DOB, patient's ID number for their co., your call back number & the address on file for the patient. All to protect the patient from other's having private medical info. To me it seemed absurd that anyone would be trying to pay a month's premium for them but it also protects them from applying the payment to the wrong patient. i.e. If you get one digit wrong in the DOB or ID number they could be applying the premium payment to the wrong account & dad or mom are erroneously still uncovered for the month & if went to the ER your bills would be enormous but they would be liable because they erroneously took your payment and applied it to the wrong patient w/o checking those other things like address, phone number your name so on. So even though it's a PITA every month, it protects your parent's coverage.

Contact a lawyer asap, have your dad renege and take her off everything. If he is competent, he can give POA and he can rescind it. I would not wait if you suspect she is stealing from him.

Just a note- I have a POA signed and notarized here in CA. Signed prior to Moms Alzheimer's getting as bad as it is today. I do not have any kind of court certified docs. We caregivers are being ran through the wringer. I generally handle all her bills with online banking avoiding having to sign checks although I did get myself on her accts back when so I could sign. The thing I wanted to mention is to be very careful in what you may request or tell Social Security/Medicare if they get wind of incompetency they will start treating you like a criminal and require you or someone to be "representative payee". The catch twenty two is that they don't recognize POA's. I made an innocent call to them to verify address and now the dung has hit the fan. I am scrabbling for doctors letters and have no idea what they are going to require of me to prove all is on the up and up. Will try to post again after my meeting with them next week. BEST TO KEEP YOUR CARDS AS CLOSE TO YOUR VEST AS POSSIBLE IN ALL REGARDS. THESE BUREAUCRATS ARE RUTHLESS.

you can go to the attorney who dealt with the poa or the people who stamped the forms all receipts need to be kept failing to do so could elimate the poa

To answer your question, you do not need an attorney to change a power of attorney.

POA's require notarization, sometimes Witnesses also depending on your state, but do not require an attorney. We don't know if the original POA forms were done personally or by an attorney but it doesn't matter at this point. I wouldn't engage an attorney or THE attorney and incur additional costs if there is a simpler (meaning FREE) way to do it.

As queried before, IF the father is competent, HE is still in charge of his own choices. If not, and the POA is of the durable type, then it is the number one sister who has the right to make decisions. This matter can most probably be handled by the dad or the first Agent POA number 1 sister.

If your father is of sound mind and is aware of what is going on, then he has the legal right to change his POA at any time. Get him the new forms and let him sign them then take them to a Notary Republic. This will supercede any prior POA papers that were made by for the day your father changes it. Good luck. I went thru this with my sister and the lawyers told her that the most recent papers are the ones that the law will enforce. She wasn't happy and unfortunately neither will your sister be. But this is all about protecting your father, Right!!!!!!!!

The appointment of Power of Attorney given only by the donor is a trusted position and should be carefully considered, requiring a Notary Public and an attorney ( sometimes the same person), as well as at least one witness. A relative may not be the best person for the job. The attorney who set up the POA should be informed that the Secondary has taken over. After that, it goes into another mode. Abusing this position of trust is a serious offense. It cannot be ignored, but you must have proof. Gathering proof and turning those docs over to the lawyer will be the next step. He also needs to know why this transfer was done.. Let him/her handle it from there.

We again have a situation where the POAs are not defined. The presumption here is that we are NOT discussing the health POA, since your question deals with financial matters. POA expire upon death (although there are some limited exceptions in the health POA that allow for Joyce is to be made regarding the disposition of the deceased).

That said, there are two fundamental types of general POA's (which usually cover business and other financial matters), regular and durable. The regular general POA can act now on behalf of the person but cannot act if the person becomes impaired. Within the durable general POA, there is the immediate type which allows the POA to perform the tasks that are outlined in the POA right away, and there is the type that ONLY takes effect IF or WHEN the person is found to be impaired and an able to handle their own affairs.

Personally, my preference is the immediate general durable POA because it gives you the ability to help the elder in the broadest circumstances. However, there isn't a POA in the world that is good enough for helping if you can't trust the agent.

Another question that comes up is, does your father have a trust? IF your sisters are operating as trustees, its a somewhat different matter. You would usually need a lawyer to change a trust but you don't necessarily need a lawyer to change the POA documents. Depends on if the lawyer wrote them in the first place, if they're complicated or if you use standard forms.

Where do you all live in relation to each other...near...far?

I'm assuming your father has told you that second sister will not return the checkbook? Why do you think she's paying her own bills with your dad's money? Has either the primary POA sister or yourself ask her to return the checkbook?

How do you know she's signing your father's name? She may not understand that she's supposed to sign her own name as his attorney-in-fact.

You have given some really slim information here. Do all three of you visit with and have open dialogue with your father? Why ELSE do you think your sister is doing this? Why does first POA sister I think 2nd POA sister is doing it? BTW, just because first POA sister gave materials to second POA sister while 1st was ill, that doesn't change the order on the POA document. 1st sister still has primary say so. Are YOU on the POA document as a third agent for your dad?

You say your father has not been deemed incompetent but do YOU suspect some type of impairment?

IF your father is of sound mind, he can change his POA at any time and he can also change the way his bank account function. You could take him to the bank to do this but the least confusing way as well as the most appropriate way would be for the first POA sister to also go so that there's no appearance of wrongdoing, manipulation or undue influence on your father. Is 1st POA sister well enough for a trip to the bank?

Please give more information in order to receive better ideas and suggestions.

We recently had this situation in my family and we had to wait for my mom to recognize the situation for herself and contact her attorney and have the POA changed. Sometimes, it's just a matter of the individual not knowing what the role of POA is ... they only step in when the individual is not able to attend to their affairs, such as when your dad was having surgery and recovering. Can someone tell her that dad wants to do it himself now and that POA does not allow for her to continue when he's not competent. Can you help dad set up automatic payments from his account which would eliminate the need for someone to be involved? My mom only has phone and cable but those are automatically paid from her checking account.

It sounds as if what your sister is doing is illegal if she is paying her own expenses under the POA. That is not the way a POA is suppose to work. Forging his name on checks is also illegal. You may want to contact an attorney.