he has recently been placed in a nursing home. his adult kids, have power of attorney to care for him. his finances will need to be secured and managed for nursing home bills and taxes. his wife is not able to do this, nor is she trustworthy. this is all in the state of Louisanna
When an individual signs a power of attorney, that person asks someone to serve as their "agent" and to take actions on that individual's behalf. Sometimes, the agent's power to act is immediate. For example, a husband and wife frequently give each other powers of attorney that become effective from the moment they are signed. In other instances, the power of attorney contains a "springing" clause which requires that the person be found to be incompetent before the power of attorney becomes effective. Different attorneys prefer different springing clauses. For example, sometimes the doctor must declare the individual to be incompetent; in other cases, a family committee can determine that the person is incompetent.
The only way to know whether the power of attorney is effective is to read it. If there is a problem with the power of attorney (for example, the agent is dead or not competent and there is no successor agent), then someone may want to consider obtaining a guardianship and conservatorship over this individual to help him with his medical care and finances.
This is not intended as legal advice and should only be used for informational purposes only. You should never believe any information that you receive on the internet, especially information that is probably being provided in the late evening hours when I should be sleeping.
Most powers of attorney are effective immediately, so once the person, call the principal, signs the power of attorney, the agent can use the power of attorney. Some powers of attorney are only effective when the principal cannot make decisions for himself, this is called a "springing" power of attorney because it springs into effectivness when the person is disabled.
most powers of attorney would say "this power of attorney is effective immediately" or "this power of attorney is only effective if I am disabled."
I would alway recommend consulting with an elder law attorney in your state, preferably a certified elder law attorney
I agree with the two attorneys who have commented above. As a practice note I would recommend that generally people do not sign springing power of attorneys but rather a durable power of attorneys that are active upon signing. "Durable" implies that the POA survives incapacity.
The reason is that there is some scholarly debate as to whether a POA can be effectively conveyed by a person once they are already disabled. How can you give someone authority when you have no authority to make the transfer? This is an issue that has been debated for years.
Unfortunately having a POA that goes into effect on the date of signing has other real risks. Technically speaking a POA can access a persons accounts and close them out. Fiduciary law protects an individual from stealing but once the money is gone it can be difficult to get it back and "unspend it."
In the end choose someone you trust to be your POA. Then way the risks of access to your account (while you are healthy) vs chance that the POA will fail.
Disclaimer: The foregoing answer does not constitute legal advice, is provided for informational and educational purposes only for persons interested in the subject matter. Each situation is fact specific and may be subject to state specific laws. Without a comprehensive consultation and review of all the facts and documents at issue it is impossible to evaluate a legal problem fully. This answer does not create an attorney-client relationship. No Tax Advice - Circular 230 Disclaimer - Any information in this comment is not intended to constitute a comprehensive and complete tax consideration analysis, and may not be used by the taxpayer to eliminate or reduce penalties by the IRS or any other governmental agency, nor for the purpose of promoting, marketing or making recommendations to other persons on any tax-related matters.
The other attorneys above have done a nice job of answering the question. You may consider a guardianship (some sates call it a conservatorship), even if you have a durable power of attorney. If the wife is not trustworthy, you may need to be able to ensure that you are the one making the decisions, both financial and medical. The guardianship revokes (or suspends) the power of attorney and any health care directives your dad may have executed.
Ordinarily, you want to avoid the court supervised guardianship if the power of attorney is working as designed.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline