What activates a Durable Power of Attorney?

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What activates a Durable Power of Attorney?

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My aunt told me that one must file a Durable POA with the register of deeds for it to be activated. I thought it was activated once it was signed and notarized.

Power of Attorney (POA)

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Here in the State of Florida I had a Power of Attorney and Durable Power of Attorney that I actually wrote for my mother (with the help of on-line examples). She read it over, we had a notary and she signed it. The notary did ask her questions to make sure she was competent and knew what she was signing. It also had to be established that she was competent since a Durable Power of Attorney needs to be signed and notarized while the person is competent, but does not take effect until the person becomes incompetent. I was told by the rehab administrators and attorneys that this was all that needed to be done. I did not have to register or file the document. I used the Power of Attorney numerous times; thankfully never had to use the Durable Power of Attorney. When I showed it to people that needed to see it they told me that apparently I had a good attorney draw it up (LOL) because it was done above and beyond what they normally saw. I had
numbered each page 1 of 6, 2 of 6, etc.; had a place for mom to initial each and every page and a place on each page for the notary to also initial. This way there could be no question as to whether these were the original pages of the entire document that mom signed. I covered myself in every way.

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I know that in North Carolina, it does have to be registered with them in order for it to be legal. By the way, it is public record that is easily accessible online for free. I know because I've seen my aunt's where she signed it less than two weeks before her death with an X even though she was quite literate and her previous DPOA had her signature to prove it. How they managed to get that through, I'll never know.

Just like I'll never know why the original one had a provision in it that gave her two adult children control of all of her personal relationships. There is no way that it would even cross my mind to do that with my own parent.

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I would check with your state Probate Court office because I have checked with several states and each has their own laws. One fact remains that the person must be competent when signing the document. A durable POA is more beneficial, I think. Signatuer and notary does in some states consider the document legal and binding. I've also found that it depends on where you utilize documents at as to whether they deem it legal if it was not done by an attorney or registered in that state.

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The question of competency didn't seem to matter with my aunt's last DPOA. I'm not even sure that the question was raised by anyone even in the extended family who were aware of the shape she was in. How competent can someone be who was found with four narcotic pain patches on her torso less than a month before her death? Apparently, no one even questioned why she signed with an X either, even though she could sign her name before.

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It depends on the type of POA you have signed. Legally there are two types. Financial and Durable Health. ADPOA for health care decisions is more complicated than a Financial POA. A Financial POA signed in any state is valid throughout the United States, and is a valid document as soon as it is signed and notarized. A Durable POA for Health is a more complicated matter AND IS A VALID DOCUMENT as soon as it is signed. The question to ask yourself (as you are the person that knows your Mom best) is/was she competent enough in your opinion to understand what she was signing at the time the document was executed with the notary. As far as I know, no health care officials should be involved unless there is an active concern for her competency at the time the document was signed. As I've read your post, you've covered all your bases and you should have no problems helping your Mom help herself. Remember to take a couple of minutes for yourself! :) Sue

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Crowe - there's always something with family, isn't it. Haven't you been DPOA & MPOA for your mom now for like 3 years and using your POA's on her behalf? Has the validity of the POA's been an issue for you to make decisions for mom's NH, banking, whatever?

Probably not. Perhaps auntie is confusing POA's with documents that have to be filed (registered) with probate after death?

One issue that has seem to come up more frequently now with POA's is the whole issue with banks viewing them as "springing". How the POA is written makes the difference. Whether the POA is durable (DPOA) also makes a huge difference.
Some folks have POA's from ages ago before many states required the 2 independent witness and active license notary seal or downloaded from the net, that doesn't pass the sniff test for some institutions to accept.

If you have an old POA done for your folks there often can be a problem with it "SPRINGING" - many banks & other financial or insurance co.'s will not accept an old POA without the medical paperwork that allows the POA to "spring" into action. On letterhead, original signature paperwork that states that mom/dad is unable, incapacitated, demented, whatever. This can be a big problem as most MD’s don't/won't want to do such paperwork as their area is medical not legal which this is all about. Really, truly this can happen... you can't make this crap up.

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Igloo, in the state where I currently reside, the DPOA has to be filed with the Registrar of Deeds in the county where your elder lives or it isn't considered valid. Just having one doesn't make it valid until it is filed, period.

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The only time I've heard of DPOA's might having to be registered is when the DPOA as the "agent" is doing real estate transaction(s) for the "principal". The DPOA gets registered so that a Deed of Trust can be issued by the land or conveyance office
specific to that transaction.

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My uncle was fully lucid and making all of his decisions and yet, his DPOA had to be registered in order for it to be valid if the time ever came when it was to be used. It was registered with the Registrar of Deeds at the time that he made it. So was my aunt's. My mother's will have to be as well or it won't be legally valid.

By the way, neither one was ever used for any real estate transactions. Any disposition of any real estate that either of them sold or gave away during their lifetimes had their own signatures on it and not the person designated as their attorney-in-fact. Their DPOAs were only used in order to handle their banking after their mobility became an issue, but they still had to be registered with the Registrar of Deeds. That's just a fact.

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Perhaps this is specific to their state, county or parish? It would be a easy source of revenue at what $ 20 - $ 50 per document or $ 5 - 10 per page recording fee. DPOA's are inherently a private document, so if it's registered and on file at the courthouse, it would, I think, become a public document available to all.

Currently I am DPOA & MPOA for my mom, a Texas resident, and have used the documents in all sorts of situations with no problem without it being "registered". I was both POA's for an aunt with property in TX, NM & FL and never had to have it registered to do the many, many financial & legal issues. But did do a separate DPOA for finances specific to the NM land so the Realtor could deal with the whatever's for those sales, now that DPOA was registered as it was companionized to the legal for the sales. The only problem I have ever had with getting stuff done with a DPOA is in using my passport as my ID as a clerk had never seen one before......

My DH was the POA's for his mom for when she was in LA and then moved to TX, again it never needed to be registered for him to do whatever was needed.

My impression has been that a valid, dual witnessed, written in accordance with the persons state laws, notarized DPOA is good for just about everything on the elders behalf except writing a will or doing a codicil to it.

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DPOA is a matter of public record in this state. And anyone can view the scanned image of the original document via the county website. I've seen them myself and yes, I went in through the front door. All I had to do was create a screen name and I was free to search through all of it. It's the only reason why I know that my aunt's last DPOA was signed with an X instead of her name. And that made me uneasy because she was able to read and write.

Her original DPOA that had her actual signature gave her two children the right to control her personal relationships. The second one, the one signed with the X, curiously omitted that provision. It made me wonder what her children were afraid of folks seeing if there was nothing ethically, legally or morally wrong with that provision being in the original one in the first place.

I wouldn't dare to attempt that with my own mother. It's not a power that she would allow me to have and it isn't a power that I would want to have.

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Regarding my post above - I mentioned that mom signed her POA & DPOA in front of a notary who did ask her questions regarding what she was signing. I forgot to mention that there were also two witnesses that both signed it also. Sorry about that.

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My mother who lives with me has a DPOA naming me her only child. My mother has dementia which is getting worse. She will not give me the DPOA document and does not remember why is was necessary to get this document in the first place. I spoke to her attorney and he said I would need the original or have to get guardianship. At the time of the signing of the DPOA in her attornies office I asked who makes the determination as to when I can step in on her behalf and take care of the financial responsibilities - he said I can at anytime. I thought I was protected from what is now turning into a nightmare with my mother not being able to take care of herself which puts our entire family at risk. She is most likely going to need 24 hour care very soon and I cannot take the necessary steps to ensure her safety. Any suggestions as to why I may have been mislead or how I can avoid getting guardianship which is very expensive?

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Regarding when a Durable POA becomes "active"; in other words when can you actually step in on her behalf and actually "use" the Durable POA - a medical doctor needs to determine that she is "incompetent". The DPOA MUST be signed by the person, notarized and witnessed when the person is "competent" but does not become "active" until the person has been deemed "incompetent" by a medical doctor. I was told by numerous attorneys that when I signed anything in behalf of my mother (I was her agent for her POA and DPOA) to sign it with my name and then write "as POA for ____ (fill in her name)". That way, I was not just signing my name on a document but was signing it legally on her behalf. If I just sign a document I would be legally financially responsible; however signing it with my name and then stating that I was POA for her, I was acting in her behalf and myself or my family would not be financially responsible.

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First and foremost, FPOAs and DPOAs are PRIVATE, and do not need to be filed with your county prontathary(forgive spellling). Only a Will needs to be recorded; and even then it is not necessary to do so. There are two types of Powers-of-Attorney.The first is a Financial POA, which is effective immediately after being signed and witnessed by a notary. This document allows you access to and control over all financial matters, up to, and including real estate transactions. The only place that one of my relatives ran into a problem was at the bank. They had some sort of specific document that they wanted executed in order for my relative to access and work with the bank. Otherwise, they are a legal and binding document anywhere in the country, not just in the state in which they are signed. The other document is a Durable POA for Health Care. This document is also effective as soon as it is signed, and initialed at the paragraphs your relatives want you to control for them once they are unable to do so for themselves. Neither document needs to be registered with a court, unless a court initiates the order. These are private documents not privy to public scrutiny. A relative can request an accounting of expenditures on your Mom's behalf if they believe something is being done illegally. Your bank would be the first to put a red flag on anything they feel is not proper and correct. As I said previously, if the POAs were signed when your relative was in good health, you will not have a problem. Do not let family scare you into doing something that does not need to be done. From what I have read here, you have the right to, and continue to do what is best for your parent. A Guardianship although nice, at this point is really useless because you already control the finances. You can also claim your Mom as a dependent on your taxes if you are providing more than half of her support throughout the year. A Guardianship is not necessary for that either.

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TrishaK, do you know the location of the POA? I gather that your mother is living with you in your house. You may need to find a way to search the house.

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I have a DPOA in the State of Pennsylvania. My father is now 93 and has been deem incompetent. Now, the Area of Aging has gotten involved because someone anonymous call stated they were concerned about me. I have had this on my dad since 2007 and have never had a problem until now. He was made incompetent by his family physician. The agency is telling me that it is not legal. It was signed by a notary, not stale (signature of Notary). The Agency even mentioned guardianship to me. My father took me to the notary when he was of sound mind and did a DPOA with a living will. The bank will not honor this. What I want to know, what do I do. They are investigating me and will not tell me who said what.

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What activates a Durable Power of Attorney?

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