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Questions and Professional Answers

Questions and Professional Answers

  • Durable Power of Attorney for my Mother

    I want to become the Durable Power of Attorney for my mother (Texas). Is the Executor the same as the Durable power of attorney. If not, could you clarify for me please. Do I need to complete forms for a durable power of attorney or executor, a living will, healthcare directive or medical power of attorney. I want to make sure to execute properly. Thank you.
    • Re: Durable Power of Attorney for my Mother

      Powers of attorney, including health care directives or living wills, are in effect only during the principal's lifetime. An Executor or personal representative is the person appointed by the probate court to administer the estate of a person who has died. If your mother lives in Texas, she and you should consult an attorney in that state.

      Michele Cusack
      Pollak & Cusack
      1701 Novato Blvd. Suite 304
      Novato, CA 94947
  • Durable Power of Attorney vs Power of Attorney

    What is the difference between a Durable Power of Attorney and a Power of Attorney? Is a Durable Power of Attorney for medical issues only? Are they basically the same? My dad is almost 90 years old and is preoccupied with wills and making preparations for his passing. He is also on a budget, so one document that will cover all issues would be preferable.Thanks Much!
    • Re: Durable Power of Attorney vs Power of Attorney

      A durable power of attorney would take effect immediate and last until his death. One can alternatively have a springing power of attorney where, if a doctor certifies that one is not competent to handle financial affairs, the attorney-in-fact takes over at that point. There's also a different document called a living will or power of attorney for health care which specifies the name(s) of the person(s) who can make health care decisions if one is incapable of doing so. These generally are separate documents because they serve different purposes.

      Robert F. Cohen
      Law Office of Robert F. Cohen
      P.O. Box 15896
      San Francisco, CA 94115-0896
  • power of attorney vs. durable power of attorney

    My brother is in an ICU in Kentucky, I have a durable Power of attorney that was signed and notarized in KY. He has 2 citi bank accounts here in NY that his pension and social security checks are direct deposited into. My name is not on these accounts. When I went to a branch in NJ where I live they told me a durable power of attorney is not enough to put my name on his accounts. What do I have to do to be able to handle his finances while he is unable to.
    • Re: power of attorney vs. durable power of attorney

      I would need to review the specifics of your particular power of attorney, however, in most instances, the power of attorney would give you the authority to access your brother's bank accounts to make deposits and pay bills, etc...(it may not give you the authority to change the title on his bank accounts however)...but this is not really an important distinction if you can withdraw funds from the account.

      Jonathan Chester
      Lindabury, McCormick, Estabrook & Cooper, P.C.
      480 Morris Avenue
      Summit, NJ 07901
  • Durable power of attorney

    In the year of january 2005 I was hospitalizedFor 8 days. During that period and after for about 6 months I was disoriented, lapses of memory etc. I have fully recovered now but have been told I signed papers naming my two sons and giving them durable power of attorney over me. What does this mean? Should I rescind the durable power of attorney, and if so how? Iwas 64 at the time. Now I am going on 66.
    • Re: Durable power of attorney

      If you signed a durable power of attorney while you were "disoriented", then this power is probably not valid. You may rescind the power at any, provided you are competent. Send written revocation to your sons and also to any institution who may have received notice of the durable power of attorney (especially any banks). I would suggest that you have a durable power of attorney, probably a springing power, in the event that this happens again. This will avoid the expense of a guardianship.

      Thomas Shigo
      The Shigo Law Firm, P.A.
      4001 W Newberry Road, Ste E-IV
      Gainesville, FL 32607
  • Durable Power of attorney & Power of attorney

    My mother, 73, is a resident of Missouri, but the children would like to have her sign a durable power of attorney and power of attorney in Virginia. If we do, will Missouri honor Virginia's durable power of attorney and power of attorney?
    • Re: Durable Power of attorney & Power of attorney

      The short answer is that Missouri will probably honor the durable power of attorney signed in Virginia if it is properly notarized and in compliance with Missouri law.It is also advisable that, if there is any chance that the power of attorney might be disputed, you be able to demonstrate that your mother is competent to execute the instrument.

      Robert Beard
      Attorney at Law
      219 East Davis Street, Suite 350
      Culpeper, VA 22701-3013
  • Durable family power of attorney

    My parents each have durable power of attorney. My father has alzheimers. Do we need to remove him and leave my mother and add a sibling as durable power of attorney
    • Re: Durable family power of attorney

      If you believe that your father is unable to grasp the nature and the legal ramifications of having a power of attorney, then you probably should have new ones made for both him as well as your mother.Our office could handle one of those for you right away. Please feel free to learn a little more about our firm as well as trusts and estates law in general at No-Probate.com.When you are ready, you can contact our office to set up a free consultation at the number provided by LawGuru. Please make your appointment with Charles or Anthony for this matter.Thank you for using LawGuru.Scott

      Scott Linden
      Scott H. Linden, Esq.
      1510 Cotner Ave
      Los Angeles, CA 90025
    • Re: Durable family power of attorney

      Generally, it would probably be a good idea, however, it sounds to me like your situation is more complicated than you may know. Unless your parents are very wealthy, it is extremely important to develop an asset protection plan in the event that either of your parents should require long-term care. Otherwise, they could be at risk of losing substantial assets. Proper planning not only protects your mother, but may also protect assets for the benefit of the children. If you would like more information, email me at theplanner@ca.rr.comGood luck to you and your family.

      Thomas McKenzie
      Law Offices of Thomas L. McKenzie
      10702 Pamela St.
      Cypress, CA 90630
  • Power of Attorney

    My parents are moving from California to Ireland, they wish to give me Power of Attorney for any business they may have outstanding in California, I'm unsure if we need to complete a General Power of Attorney form or a Durable Power of Attorney form, both my parents are retired and in ill-health.Thank you for your assistance.
    • Re: Power of Attorney

      Certainly the former, but you may need both. The general power will allow you to handle their business affairs in the United States. A durable power of attorney is usually directed toward health care decisions, and I don't know if a U.S.-oriented durable power would be recognized (or necessary) in Ireland; I suggest you or they inquire at the counsel general of Ireland.

      Bryan Whipple
      Bryan R. R. Whipple, Attorney at Law
      P O Box 318
      Tomales, CA 94971-0318
  • durable power of attorney

    in california does a durable power of attorney need witnesses or can it just be notarized?
    • Re: durable power of attorney

      DOA must be notarized.

      Ken Koenen
      Koenen & Tokunaga, P.C.
      5776 Stoneridge Mall Rd., Suite 350
      Pleasanton, CA 94588
    • Re: durable power of attorney

      Powers of attorney for financial matters must be notarized.

      Chris Johnson
      Russakow Ryan Johnson
      225 South Lake Avenue, 10th Floor
      Pasadena, CA 91101
  • power of attorney versus durable power of attorney

    Can you explain the differences and benefits between a power of attorney, and a durable power of attorney? Also, is that different than guardianship. Are these assigned to one person, or can they be shared by a few (children)?
    • Re: power of attorney versus durable power of attorney

      A durable power of attorney is a document that you sign that appoints another person to manage your property for you in the event you are unable. A "durable" power of attorney means that it remains in effect even if you become incapacitated. You can appoint more than one person, although it is often better to have one person serve at a time, with several alternate named. There is basic information about durable powers of attorney on my blog: http://is.gd/mJq9 A guardianship is a process by which the Court appoints someone to handle your property and your personal and medical decisions. A guardianship is usually not necessary if a person has signed a health care proxy and durable power of attorney, since those documents allow your affairs to be managed by someone else in the event of your incapacity. There is more information about guardianships on my blog: http://is.gd/mJrJ

      Leanna Hamill
      Leanna Hamill, Attorney at Law, P.C.
      160 Old Derby St. Suite 456
      Hingham, MA 02043
  • durable power of attorney

    This applies to the law in California.Is a durable power of attorney responsible of any debt accrued by decisions made on behalf of someone?I hired an attorney to get my mother on Medical. He charged me a lot of money and is now wanting to sue me for that money. What is my responsibility? And because I live in New York ... his lawyer claims this will be a Federal Lawsuit. Is this true?I need help... some clarification... and what can i do if i believe is billing and his practices are unjust? How can i go about getting him dis-barred?please help me.thank you.kate
    • Re: durable power of attorney

      If you hired the attorney in your capacity as agent for your mother, you do not have any personal liability. You still might be named in a lawsuit, but you would only be liable to the extent you still control assets of your mother.If he was successful in getting your mother on Medical, he will be entitled to receive the fair and reasonable value of his services, unless California has laws limiting the amount of recovery, or unless you had a written fee agreement. If you hired the attorney directly, or signed a written agreement agreeing to pay his fee, then you will be personally responsible for his fee.You can contact the California State Bar Association to find out what the proceedure is to make a complaint against the attorney. In order to be a Federal lawsuit, the amount in controversy would have to exceed $75,000; if his legal fees are that high he should be disbarred. More likely, he will try to sue you in California claiming that the services were provided there and that you submitted to jurisdiction there by hiring him.

      Frank Lang
      Lang Law Firm PLLC
      14 Computer Drive East
      Albany, NY 12205
    • Re: durable power of attorney

      If you hired an attorney, then you are liable for the fair and reasonable value of the services he provided. If there was no agreement as to the fee, and you feel his charges are exorbitant, you may be able to get it reduced. In NY, there must be a written fee agreement before a lawyer can take a case if the fee is over a set amount. There is also a dispute resolution process in which the attorney must justify the amount of his fee. Call the local bar association where this attorney is located and inquire what the rules are in CA.

      Arnold Nager
      Arnold H. Nager, Esquire
      79 Cliff Street
      Hastings On Hudson, NY 10706-2101
    • Re: durable power of attorney

      If you are a resident of NY and the atty suing you is a resident of CA and the amount in controversy (being sued for) is over $75,000 then you can be sued in Federal Court as a "diversity" case.

      Debra Palazzo
      Law Offices of Debra Palazzo, LLC
      317 Elwood Ave.
      Hawthorne, NY 10532
    • Re: durable power of attorney

      If you retained the attorney in your capacity as holder of the Power, you can be sued if his bill is not paid. Was there a written retainer agreement? If not, you may have a defense. Since there are multiple states involved, federal courts may have jurisdiction based upon diversity of citizenship, but the jurisdictional minimum must be involved to invoke federal jrisdiction. If the fee dispute does not meet the minimum jurisdictional amount, suit cannot be brought in the federal courts. Only a state court proceeding may then be brought against you. Since this involves a fee dispute with an attorney, there are usually bar association mediation rights before suit can be initiated. You should check on the availability of this mediation. Check with the California State Bar Association on what are your rights and how to contest the bill, if the services were not as represented, or if the bill is excessive. The written agreement controls. If there was no written fee agreement, your position is much better to defend this.

      Walter LeVine
      Walter D. LeVine, P. A.
      23 Vreeland Road #102
      Florham Park, NJ 07932
    • Re: durable power of attorney

      A provider of service has the right to rely on a power of attorney as giving you the authority to make decisions for that person. Therefore if you contracted a lawyer on the grantor's behalf, the lawyer has a reasonable expectation that you will be responsible for the fees. As for suing you, if you are in New York and the lawyer is in Calfornia it is possible that jurisdiction exists for Federal Court purposes so long as the amount in question exceeds $75,000. Should you like to discuss this or any other legal matter, I can be reached for on-phone low-cost legal consultation at 1-800-275-5336 x0233699

      Stephen Loeb
      Law Office of Stephen R. Loeb
      75 Maiden Lane, Suite 339
      New York, NY 10038