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Power of Atty...
February 10, 2011
7:16 am
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crystalwaters
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I'm not sure if anyone would be able to answer this, but...can someone who collects disability for major depression, and has been certifed as unable to hold a job, act as power of attorney for her elderly mother? 

February 10, 2011
9:09 am
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StronginHim77
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Possibly not, due to the nature of the Disability.  You should check with a Family lawyer, as to the advisability of granting P.O.A. to someone with this legally identified disability.

-  Ma

February 10, 2011
11:52 am
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crystalwaters
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That's so odd, Ma...I just posted "test" to see if a resp to this thread would go thru -- and when I posted, yours popped up too!

Thanks for your feedback.  I'm asking because long story short (I'm @ work right now so brief) my grandma just underwent emergency surgery...is in icu...and my mother is her POA.  I am the estranged black sheep oldest who sees through my mother's shit and thru this site and other places have IDed her as a narcissist... my brother is the alcoholic slacker middle kid... and my sister, the youngest, "just wants everyone to be happy".  I feel as though my mother is more "controlling" my grandmother according to her own wants than paying attn to what my grandmother would want.  I think that someone like my sister would be better suited for this role, and she wouldn't have said no, but Grandma asked our mother years back when she started getting illnesses that put her in hospitals and rehabs for extended amts of time.

I think I will look for a family lawyer and at least ask the question...I asked here, on FB, and I also wrote to my friend who is a psych nurse to get his opinion.  I have atty friends on fb who haven't weighed in yet...

 

Thanks again for your feedback...

February 11, 2011
12:18 pm
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StronginHim77
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Wow.  What a mess!   Let me know what sort of legal feedback you get, ok?

-  Ma

February 11, 2011
12:28 pm
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curious64
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Laws will differ from state-to-state, but here in Indiana you can be a POA as long as you yourself have not been diagnosed by a mental health professional as being incompotent to make decisions.  You can suffer from depression and still be able to make decisions for yourself.  If you are compotent to make decisions for yourself you can also be POA for another.   I work in mental health in Indiana and am the legal liason to the courts here.   Not sure what state you are in, but that is how it works here.   HUGS

February 12, 2011
10:36 am
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StronginHim77
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Thanks, Curious.  You really know your stuff.  That's the nice thing about these threads.  No matter what questions arise, someone inevitably has the background or experience to provide some solid answers and suggestions.

-  Ma

February 14, 2011
10:33 am
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auto999
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Does your state have a legal aide sociiety? There are free services that can help you fill out forms and have volunteer attorneys on hand that can answer legal questions. Some attorneys also provide free consulations. 

February 14, 2011
11:24 am
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hiddenobject
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New Power of Attorney Law

by David Goldfarb

Goldfarb Abrandt Salzman & Kutzin LLP

Chapter 644 of he Laws of 2008 amends the New York General Obligations Law to provide new provisions for power of attorney forms. The law is effective September 1, 2009. The new law contains major changes relating to both the content and the execution of the form, including an acceptance by the agent. Major gifting will now require a second form, called a Statutory Major Gift Rider (SMGR), which has additional execution requirements. The statute also creates specific fiduciary responsibilities for the agent.

The law now provides that the form is “durable” (i.e. not effected by later incapacity), unless it provides it is terminated by incapacity of the principal. NY G.O.L. § 5-1501A. If a guardian is later appointed the agent shall account to the guardian rather than the principal. NY G.O.L. § 5-1501A.

The Power of Attorney must now be signed, dated and duly acknowledged, not only by the principal, but also by the agent. NY G.O.L. § 5-1501B subd. 1 (c).

To be valid for the purpose of authorizing the agent to make gifts a statutory short form power of attorney must contain the gift giving authority initialed by the principal and be accompanied by a valid statutory major gifts rider (SMGR); the SMGR must be executed pursuant to the requirements of NY G.O.L.§5-1514 subd. 9 (b) which includes being acknowledged and witnessed by two witnesses in the same manner as the execution of a will. Non statutory powers of attorney appear to be still permissible (there is some ambiguity in this provision), provided certain rules are followed, but a non-statutory power of attorney which contains gift giving authority must be similarly acknowledged and witnessed. NY G.O.L. § 5-1501B subd. 2(b). 

The date on which an agent's signature is acknowledged is the effective date of the power of attorney as to that agent; if two or more agents are designated to act together, the power of attorney takes effect when all the agents so designated have signed the power of attorney with their signatures acknowledged. NY G.O.L. § 5-1501B subd. 3 (a). Unless it is a springing power of attorney (“to take effect upon the occurrence of a date or contingency”) in which case the occurrence of the contingency is also required. NY G.O.L. § 5-1501B subd. 3 (b).

The authority to create and fund trusts is removed from NY G.O.L.§ 5-1502C, and now appears as a specific provision in the statutory SMGR to “create, amend, revoke, or terminate an inter vivos trust.” Similarly the statutory authority to designate beneficiaries on insurance is removed from NY G.O.L. §5-1502F.

The authority to create joint accounts or modify a “totten trust” beneficiaries must be included in SMGR. NY G.O.L. § 5-1502D subd.1 (a) and (b). The same is true to change beneficiaries on retirement benefit plans. NY G.O.L. §5-1502L subd. 2.

Certain small gifts ($500 each and under in a calendar year) to individuals and charities, which continue a custom of the principal, can be made by the agent without a SMGR. NY G.O.L. §5-1502I subd. 14.

Provisions regarding health care billing and payment matters, should allow access to health care records in accordance with HIPPA requirements. NY G.O.L. §5-1502K.

Provisions can be added to the statutory short form or SMGR in the section labled “modifications.” These modifications can eliminate a power in one of the constructional sections of the statute, supplement a power, or add a provision not inconsistent with the other provisions of the form. NY G.O.L. §5-1503.

Acceptance of the new statutory short form power of attorney is mandated and a third party cannot refuse to honor the statutory short form, a SMGR or a POA properly executed under the laws in effect at the time it was executed, without reasonable cause. NY G.O.L. §5-1504. The statute provides it is unreasonable for a third party to require their own form or to object because of the lapse of time since the execution, or to the lapse of time between acknowledgement by the principal and the agent. NY G.O.L. §5-1504 subd. 1 (b).

IMPORTANT PRACTICE NOTE: The new statute provides a “prudent person standard of care” with defined fiduciary responsibilities. This includes record keeping (with receipts) and imposing on the agent the requirement that records must be made available within 15 days of a written request by a monitor, co-agent, certain governmental entities, a court evaluator, a guardian, or a representative of the principal’s estate. NY G.O.L. §5-1505. An agent may be liable for conduct or omissions which violate the fiduciary duty. NY G.O.L. §5-1505 subd. 2 (b). However, an agent may resign by following the procedures in the statute. NY G.O.L. §5-1505 subd. 3. In the new form there is an optional provision that the principal can appoint a “monitor” to request and receive records of transactions by the agent. NY G.O.L. §5-1509. The statute provides for a special proceeding to compel an agent to produce a record of receipts and disbursements and for various other purposes. NY G.O.L. §5-1510. These provisions regarding fiduciary responsibilities and special proceedings apply to all powers of attorney including those executed before the effective date of the new law.

The statutory short form POA is set out at NY G.O.L. §5-1513 and provides: that it is durable, unless you provide otherwise; it revokes any prior power of attorney, unless you provide otherwise.

Statutory Short Form Powers of Attorney properly executed in accordance with the law in effect at the time of its execution remain valid and must be honored. NY G.O.L. §5-1504

March 9, 2011
10:39 am
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crystalwaters
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Thanks all for your responses.  My grandmother passed away at the end of the month.  In my heart, when I saw her earlier in the month in her hospital room, I knew that what was happening at that time was a goodbye.

I found out the news of her death via a phone call from my brother, whom I referenced above.  She had not been dead an hour, and he railed in to me about how I am not contributing to "family togetherness" the way "she would have wanted".  I took a deep breath and started to formulate a response, when he suddenly said that he had to get in an elevator and the signal was going to go.  Abrupt endings to phone calls are a very common thing for him when he and I are on the phone.  My father -- sober for over 20 years -- has that to some degree as well.  My brother is like a carbon copy of how my father was at that age.

I found out about the wake and funeral through the website of my hometown paper.  My father also called with the information (although he is the ex son-in-law, he cared very much about my maternal grandmother and he also knew that my mother and sibs would likely tell me nothing).  I opted not to go because I knew that the religious wake and service would be very much my mother's "show" as opposed to a way for me to say goodbye to Grandma.  I felt I had said goodbye to her, earlier in the month, when we squeezed hands and looked into each other's eyes. 

My brother's been sending me texts putting me down for not attending the wake or services.  People outside of the family, with whom I've spoken in confidence, as well as my father, understand my reasons for not going.  My mother, sister, brother in law have not contacted me at ALL.  My father calls my brother "Charlie Sheen" which is kind of snarky and high-horsy, but is also pretty accurate in terms of the way he speaks to people lately.

I'm not sure what to do about the texts.  I really feel done with my mother and siblings.  I've actually BEEN done with my mother, and the only reason I talked to her again was that my grandma got sick.  When I was up there earlier this month, my brother in law (another sober alcoholic) laid into me saying that I "blow my family off".  Part of the reason I stay away is because this is how I am typically treated!  I feel that responding to my brother's texts in any way would only create drama.  Any advice would be appreciated ladies...

My boyfriend also brought up the whole will thing, which was something I never spent much time thinking about because our family never had much.  I don't want to see my mother or siblings at this point.  What happens if I am called to some meeting about something my grandmother perhaps wanted me to have -- like books or something like that?

Thanks for any thoughts.  And yes -- Ma Strong, if you remember my posts from last year...I'm still procrastinating about getting into therapy, even though my ins will pay for 52 sessions a year.  Kicks in the ass regarding finding a therapist are much appreciated.  😉

March 9, 2011
7:38 pm
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curious64
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Crystal I am so sorry for your loss.  Also, it is sad to hear how your family is treating you.  Nobody should have to be treated that way by anyone, especially family.  I know exactly what you mean about the funeral being a "show" for your mother.   I have a family member like that and it stinks.  You are right, that you and your grandma said your goodbye when you were together.  

I wouldn't respond to the texts from your brother if he is just trying to create drama for you.   To be compared to Charlie Sheen is pretty telling.   Sounds like he could be pretty toxic.  

Don't worry about what others are saying about your choice to stay clear of the wake and funeral.  You don't have to answer to anyone about that.   You have your reasons and they are that "your" reasons.  They have no right to any explanation.  They wouldn't like the answer anyway. 

If you feel like therapy would help you then certainly check it out, especially if you have coverage now.   I have found therapy to be helpful during the depths of my depression.   Things are pretty crazy in my life right now and I am thinking about starting again.

If an attorney summons you for the reading of the will just go for that and then you can leave.  Nothing says you have to socialize with the family.  If your grandma wanted you to have something to remember her by then you should accept it. 

 

I hope you find some peace and comfort.   Give therapy a chance, it could be quite beneficial to you. 

HUGS!!!!!!

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