What happens to the Power of Attorney when the Attorney dies

Discussion in 'Legal and financial issues' started by T-Terry, Nov 29, 2015.

  1. T-Terry

    T-Terry Registered User

    Nov 29, 2015
    2
    Hi, My father has Alzheimer's and my mother has power of attorney to deal with his financial and healthcare needs. Unfortunately, my mother has been diagnosed with cancer and is in hospital and very sick.

    I am concerned that she may pass away before my father and need to understand what happens to the power of attorney, i.e. does it die with my mother?

    If the power of attorney does stop when my mother dies is there a fast track way of becoming an attorney myself so the power of attorney can transfer to me. I am an executor of my mothers estate if that has any bearing on this?

    I hope you can help me

    Thanks,
    David.
     
  2. Katrine

    Katrine Registered User

    Jan 20, 2011
    2,850
    England
    Hi David, welcome to TP. The donor has to have mental capacity to make a new POA. This would be far preferable, because it is reasonably straightforward to administer someone's affairs as an attorney. Deputyship is much more admin intensive and expensive. If your father does not have capacity, then you would have to apply for Deputyship.

    You could start this straight away, asking for the POA to be superseded by your Deputyship due to your mother's permanent incapacity. I would recommend ringing the Office of the Public Guardian for advice. There may be a fast track procedure.
     
  3. canary

    canary Registered User

    Feb 25, 2014
    10,531
    Female
    South coast
    Hi David. You right to think that the POa ceases when the attorney dies.

    If your dad still has capacity then he can amend the POa or take out a new one.
    Unfortunately, if he doesnt have capacity then you cannot go down this route. What you will have to do is apply for Court of Protection deputyship to administer his finances. I believe that there is a fast track route.
     
  4. nitram

    nitram Registered User

    Apr 6, 2011
    19,022
    Male
    North Manchester
    If your mother is able to it could be worthwhile setting up direct debits for all your fathers known regular expenses.

    Being executor for your mother does not help.
     
  5. T-Terry

    T-Terry Registered User

    Nov 29, 2015
    2
    A Huge Thanks to everyone who has given advice.

    Hi Nitram, Canary & Katrine,

    Thank you so much for your advice on this matter, I will certainly in the first instance have the discussion with my mother regarding the direct debits and then I will look into the POA deputyship as my father no longer has the mental capacity.

    Much obliged,

    David.
     
  6. ITBookworm

    ITBookworm Registered User

    Oct 26, 2011
    453
    Glasgow
    We live in Scotland so the law is possibly different but worth a check anyway....

    FIL's Power of Attorney document appointed hubby (his son) as attorney but it also had a fall back or replacement attorney listed. If for whatever reason hubby permanently couldn't/wouldn't do the job then the replacement attorney kicked in. This was all done when the document was first written so the fact the the donor might no longer have capacity didn't matter.

    Another possibility (this definitely can apply to England) is that more than one attorney can be appointed initially. If the appointment is "jointly and several" (I think that is the correct phrase) then if one can no longer act the other attorney still can and this would still apply if the 2nd attorney hadn't been doing anything before.

    Neither of these scenarios might apply here but it would be worth investigating just in case it can make your life easier.
     
  7. canary

    canary Registered User

    Feb 25, 2014
    10,531
    Female
    South coast
    OH and I have just done our POAs and have done exactly as you describe, ITBookworm. We have each other and also our 2 children listed as attorneys (jointly and severally). I noticed on the form that replacement attorneys were also possible.
    Our solicitor advised us to have more than one attorney because of the very scenario that T-Terry describes. I am thinking, from what he is asking, that his mum is the only attorney.
     

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