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Unable and unwilling to act as Attorney in Fact under a Durable General Power of Attorney. What do I need to do?

Phoenix, AZ |

An old friend never updated her Durable General Power of Attorney documentation and has had a severe stroke. She has been in the hospital for about a week now and has thus far been unresponsive. She is considered incapacitated at this point. I feel it best at this point that her family take over her business affairs. She has a son in his 20s and 3 sisters. What do I need to do to relenquish my responsibilities? (at the time she executed the documentation, she was living with me but has not lived with me since 2010, document is dated 2009).

Attorney Answers 3

Posted

if the POA provides for an alternate or successor Agent, then it should just be a matter of your sending a letter to the successor/alternate. I would also send it to the principal and anyone else who you have been dealing with as agent. You may want to have the letter notarized, as well.

James Frederick

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Posted

The Durable General Power of Attorney does not contemplate an alternate or successor. Does this mean I should work with an attorney to draft something to transfer this responsibility to her family?

James P. Frederick

James P. Frederick

Posted

If she has capacity, then she can sign a new POA. If not, then you cannot get one.

Posted

You could execute an affidavit declining to serve as the agent under the power of attorney. If there is a back up agent, that person would then step in. I would also send a letter and the affidavit to her son and sisters.

It is a good idea for your own protection to consult with an elder law attorney in Arizona to make sure you are not left vulnerable or liable in any way.

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Posted

Powers of attorney frequently fail if the appointed attorney-in-fact can not or does not want to serve and the document does not list a successor who is able and willing to serve. That is one reason that people should consult with an experienced elder law attorney when preparing powers of attorney. You can refuse to serve (follow the advice that has been given) and then your friends family may need to step up and petition for guardianship. You only mentioned a durable general power of attorney. Does it contain a health care power? Without that authority, you can't make health decisions for her anyway.

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