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How far do the durable POA go concerning my mother and do I inherit her bills if she has a living spouse?

Raleigh, NC |

My mother states in the POA that if she become incapaciated she want me to be her guardianship. She has a living husband and my brother is executor of her will. I want to make sure that if something happen that her spouse does not have control over her funeral. I know POA ends when someone passes away.

Attorney Answers 3


  1. Spouses have certain automatic rights and it sometimes becomes a battle with children that have a POA.
    Your mother should pre-plan her funeral and pre-pay the expenses and advise you of her plans.
    The POA is void upon death as you know.
    She should advise her spouse of anything she wants you to handle for her and advise him of your POA ahead of time.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.


  2. The spouse almost surely will control the funeral unless your mom sees a local elder law attorney to prepare appropriate documents governing funeral arrangements.

    Lawrence Friedman, FriedmanLaw, Bridgewater, NJ, 908-704-1900. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.


  3. Generally you do not inherit the bills when someone dies, but unless they are disallowed under a probate process, those bills are paid by the estate of the deceased before any distribution can be made. If the distribution is made under a "short form" probate, he bills follow the property. This is very state specific and you should confirm with a NC attorney to see if the general rule applies.

    As my colleagues have said, if you want to make sure that the spouse does not interfere with the funeral plans, your mother or you acting under the POA, should bury an irrevocable pre-paid funeral plan.

    Responses provided on Avvo are for general informational purposes only, based upon the limited information that is provided, and do not constitute legal advice. As such you should consult with your own attorney for specific advice. No attorney/client relationship exists with Kelly S. Davis unless set forth in a written engagement letter. The Wyoming State Bar does not certify any attorney as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer's credentials and ability, and not rely upon advertisements or self-proclaimed expertise.

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