My mother executed a durable power of attorney naming me as her agent. The POA becomes effective when she is certified as incapacitated. My mother kept the original papers and I have a copy. It appears that the original papers are lost. My mother now has dementia and needs to be certified as incapacitated so that I can act for her. Can I use the copy of the papers now to ask her doctor to certify her as incapacitated so that I can act for her?
It depends on the terms stated in the document. Some allow a photocopy with photocopied signatures to be used in lieu of the original. Others do not.
Take your copy to the attorney who drafted the original, see if HE maybe has an original or if your copy is good enough.
This answer is offered for informational purposes only and does not constitute legal advice or create an attorney/client relationship. I am licensed to practice in Michigan only. Please seek competent local legal help if you feel you need legal advice!
You really should contact an attorney to navigate through the myriad of problems you face caring for your mother. Having only a copy is just one of the issues and that attorney should be able to properly guide you through the process. Your other option is to give up assuming the copy is not adequate. Since you took the time and effort previously to have a Durable POA created in the first place, this latest obstacle should not stop you.
I provided this response for informational purposes only, and nothing stated should be construed as legal advice specific to your situation since I have not been provided with all the facts and details. If you would like to consult directly with me, you would have to contact me privately for a consultation. Even then, I am not your attorney unless you and I sign an agreement to that effect. I am not licensed to practice law in any state other than California and this response is not intended to be considered as a solicitation of legal services. Please consider how much you have paid for this response before relying on it to determine your legal rights and obligations.
In most cases a copy (with signatures and notary stamp) should be adequate. It helps a great deal if the power of attorney itself says that a copy is an adequate substitute.
While a certification of non-revocation might help in solving some of the problems you might face with only a copy, you still might face some difficulty. For example, there is an old common law rule entitled the doctrine of equal dignity which would require the original POA to be recorded in order to transfer real estate. I don't know what the law is in California or whether that rule still applies, but a California attorney should be able to tell you.
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.
You may need some documentation that the POA has not been revoked or a certified copy. The attorney who drafted the original should be able to help.
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