Can a marriage license supersede a power of attorney?

Asked almost 2 years ago - Livermore, CA

My father is aging and the children thought it may be good to prepare a POA. We are children of his first marriage and his only children. My father is on his third wife. She has limited English comprehension and we thought it may be a wise idea to help when the end comes.

Additional information

I should add that my father is in the early stages of Altzimers disease.

Attorney answers (5)

  1. John Noah Kitta

    Pro

    Contributor Level 19

    4

    Lawyers agree

    Answered . The fact that your father remarries can certainly impact and affect your abilities to utilize the power of attorney you would receive from him. A lot of important issues would be such as how he held title in relation to his wife, does it take both their signatures or only his signature to control the account or remove funds. Whatever you do, do not look at the power of attorney as being a blanket insurance policy so your father cannot somehow or other share with or distribute funds or assets to any wife.

    This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client... more
  2. Michael Leo Potter

    Pro

    Contributor Level 20

    3

    Lawyers agree

    Answered . Age does not automatically make your Dad 'Incompetent'. Under a Power of Attorney, a person can basically name a spouse or anyone else to act under a POA. Don't just 'Assume' your Dad does not want his wife involved. He chose to marry her - and her limited use of English doesn't necessarily mean she would act in a way contrary to his wishes. Joint Bank accounts, Joint Investment holdings, real estate titles etc. are issues you should discuss with him - but give his wife the respect she deserves. He and she may have entered into an oral agreement about what is to be done when, and certainly his Will (or better yet) his Trust could be a key factor. I suggest you attend a meeting with your Dad, your Step-Mother and your Siblings in the office of a local Estate Planning attorney to sort this out.

  3. Joseph Franklin Pippen Jr.

    Pro

    Contributor Level 20

    3

    Lawyers agree

    1

    Answered . The POA is void when the end comes.
    The father-if competent-can make his own decisions even after signing POA.
    The spouse has certain spousal rights which could conflict with the POA if the husband becomes
    incompetent.

    The answer given does not imply that an attorney-client relationship has been established and your best course of... more
  4. James P. Frederick

    Contributor Level 20

    2

    Lawyers agree

    1

    Answered . A person is generally free to name anyone he or she wants to act under a POA. In cases where there is a later marriage and children from a prior marriage, it is quite common to name one of the adult children. I agree with Attorney Pippen, however, that the spouse may have rights that would conflict with the POA agent. One example of this would be a joint bank account. Both the spouse and the POA agent could theoretically access this account, which could create a huge mess for everyone. In this case, it might be best to have an agreement/understanding ahead of time as to how this is going to work. Obviously, everyone working together to help take care of your father would be in everyone's best interest.

    James Frederick

    *** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and... more
  5. Steven J. Fromm

    Contributor Level 20

    1

    Lawyer agrees

    Answered . Second marriages always create problems. He should have entered into a prenuptial agreement if he wanted to protect his children. The POA lapses at his death so that is of little help. He needs to see an estates attorney to plan out his estate assuming he is still legally competent to do so.

    For more on talking with aging parents about this topic please read Estate Planning For Elderly Parents: Discussing Finances and Estate Planning with Your Aging Parents at the following link:
    http://www.sjfpc.com/estate_planning_for_aging_.... Please hit the like button at the end of the article if you found it helpful. Also see the hypertext article listed below.


    Hope this helps.

    Please remember to designate a best answer to your question.

    Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336, his email address is sjfpc@comcast.net , for more tax, estate and business articles visit his website www.sjfpc.com. and blog

    LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia... more

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