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.
If you find this answer useful, please mark it as "Helpful". Likewise, if you believe it is the most responsive, please mark it as the "Best Answer". The information provided herein is for informational purposes only, and should not be relied upon or construed as legal advice or legal opinion. You should not rely upon the information provided at this site without seeking individual advice from an attorney. No attorney-client relationship can be assumed or created by this post.
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
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.
Yes, for the sake of clarity, you should have her written, notarized
Joseph A. Bollhofer, Esq.
Joseph A. Bollhofer, P.C.
291 Lake Ave.
St. James, NY 11780
Member, National Academy of Elder Law Attorneys (NAELA)
This e-mail may contain confidential or privileged information. If you are
not the intended recipient, please notify the sender immediately by return
e-mail and delete this e-mail and all copies and attachments. If you are not
the intended recipient, or the employee or agent responsible for delivering
the message to the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly
IRS Circular 230 Notice: Unless specifically stated otherwise, any tax
advice contained in this communication (including any attachments) is not
intended or written to be used, and cannot be used, for the purpose of (i)
avoiding penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any transaction or matter
Unless specifically stated otherwise, this communication shall not be deemed
to be legal or tax advice, and no attorney-client relationship shall be
deemed to have been created.
Unless specifically stated otherwise, this communication shall not be deemed to be legal or tax advice, and no attorney-client relationship shall be deemed to have been created.
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.
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.
This answer is made for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed professional attorney that practices in the subject practice discipline and with whom you have an attorney client relationship along with all the privileges that relationship provides. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party, any partnership, investment plan, arrangement, legal structure or other transaction addressed herein.
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.