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Posted: 10/24/2017 Posted by:

A Power of Attorney Not Named – Now What?

Categories: Family Law

A Power of Attorney role must be established before a loved one becomes incapacitated or passes away. But what happens if a person never has a Power of Attorney document prepared, and fails to assign someone to act on his/her behalf (if he/she is incapacitated and not able to do so)?   This situation can occur when an individual unexpectedly becomes ill or injured, either physically or mentally, and is unable to act on his or her own behalf.  

Understanding the Different Types of Power of Attorney

The Power of Attorney “Agent” (or Grantee) is an individual who is authorized to represent or act on another’s behalf,  in regard to financial affairs, conduct business, and/or other legal matters. Power of Attorney (POA”s)  are used to take care of these type of matters for the individual when the person cannot care for themselves and are always to be judged with reference to what is in that person’s best interest. It’s important to understand that there are different types of Power of Attorney documents, which can assign various types of responsibilities.

  • Medical power of attorney: When someone is incapacitated due to injury or disease, a medical power of attorney is used to determine who will make medical decisions for the individual.
  • Financial power of attorney: Directs a person’s financial affairs, which may include paying bills, making deposits, monitoring financial investments, or in some cases the need to sell a home or liquidate assets.

Naming a Power of Attorney Agent (Grantee)

The Grantor is the person having the Power of Attorney document prepared on his/her own behalf.  A Power of Attorney Agent (Grantee) must at all times maintain the best interest of the loved one having the POA drafted.  The POA will be effective until the Grantor passes away, and thus it is important to select an Agent(s) who can be trusted to make the best decisions on behalf of the Grantor. If the Grantor becomes uncertain about the actions of the POA Grantee, the Agent may be replaced at any time by drafting a new POA Document, as long as the Grantor of the POA is mentally able to make the decision to do so.

What if Incapacitation Takes Place and a Power of Attorney Agent Has Not Been Named

There are some circumstances where a person never got around to drafting a POA document or becomes suddenly incapacitated at a young age. If someone needs to act on behalf of the incapacitated person,  and a POA Document does not exist, then a Court proceeding will be required to appoint a Guardian for the loved one who is no longer capable to act for himself/herself.  The process for Petitioning the Court for a Guardianship is often time-consuming and can become very costly.

Disputing a Power of Attorney

Unfortunately, decisions are not always made in the best interest of an individual, and it can become necessary to dispute a POA. A common dispute situation arises as a result of financial abuse: a family member or friend may acquire the POA role for the sole intent of enriching himself or herself.

At this point, a POA may likely need to be disputed in court. An attorney representing the family of the Grantor will need to demonstrate that the individual holding the POA is not making choices in the Grantor’s best interests.

To have a Power of Attorney document prepared for yourself or a family member, you should seek the assistance of an attorney.   The Laws in Pennsylvania have seen recent modification and overhaul.   It is important to have language included in the document that adheres to current Pennsylvania State Law, and also includes the specific wishes of the Grantor of the power to another person.  It is especially important to obtain legal counsel when there is a dispute with a POA, or a Guardianship situation arises.   Covelli Law Offices provides legal services for all POA situations.  Call today to have a POA document drafted or analyzed, before a situation occurs where you are not able to make this type of decision yourself.