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Alternate PoA?

Brooklyn, NY |

My mother is 97. Eldest sister is in Florida and asked me (local daughter)to assume duties. I am only alternate agent. Does primary agent need to resign?

Attorney Answers 10


  1. Yes, in writing...


  2. It depends on how you're respectively listed on the POA. If, as you say, you are merely the alternate and not joint agents, then you could assume the duties if your sister is no longer willing or able to perform them, but you should have her resign the position in writing. You would have to refer to the provisions of the POA to determine what else, if anything, might need to be done per your mother's wishes, but assuming it's a straight forward durable POA, nothing else would be required.

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  3. Your sister would need to resign in writing.

    If you'd like to discuss, please feel free to call. Jeff Gold Gold, Benes, LLP 1854 Bellmore Ave Bellmore, NY 11710 Telephone -516.512.6333 Email - Jgold@goldbenes.com


  4. In order to be safe it is best that she resign in a written instrument. Make sure it is dated and you should have the document notarized as well.


  5. That depends on what the POA says but to be safe have her resign in writing.


  6. Yes, for the sake of clarity, you should have her written, notarized
    resignation.

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  7. I agree with all prior answers. I just will add that if you think the primary agent will not resign for some reason or will give you a hard time about resignation, your mom may want to revoke the power of attorney and execute a new one apoointing you. Make sure you don't just get a general resignation. Make sure you send it to all financial institutions or anywhere the prior agent was acting. This is a simple act, but can get screwed up very easily. I would have a lawyer do it becuase if it gets screwed up and your mom is no longer competent, it can not be fixed.


  8. The document should outline the procedure for the agent to resign and replace with the alternate.


  9. The question is whether the alternate can assume powers if named agent is "unavailable, unwilling or unable" to execute the powers granted under the instrument. I would watch out and make sure what the agent means by having the alternate act - is the agent unavailable "for now" and wants to re-assume duties later? Or does the agent just want to say "adios" alltogether? Go see a lawyer to be sure.

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  10. The total resignation by the attorney-in-fact or agent may not be necessary or even desirable. It depends upon what you want to accomplish and what language is contained in the power of attorney. Let's say the then serving attorney-in-fact/agent wants to purchase the personal residence for less than fair market value and that the sale is otherwise fair to the parent. To avoid the question of whether the agent selling the property to the agent is "self-dealing" or exploitation, the agent may want someone else to represent the parent. Most powers of attorney state that the alternate or successor agent has authority to act if the primary agent is "unwilling" or "unable" or otherwises "refuses" to serve. We frequently have the primary agent sign a written statement that they are unwilling or refuse to act as the agent for the purpose of this transaction alone. Once the sale is complete, the primary agent can resume serving under the power of attorney. It is a matter of clearly stating in writing what you want to do.

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