Power of Attorney - flow of assignment

September 13, 2018 7:29 PM

In the POA, there is a statement "If John Smith is unable or unwilling to serve as my Agent for any reason..." My question is this, how is John Smith deemed unable or unwilling to serve? If he is no longer alive, I understand how the assignment flows. If he is alive, who or what determines that he is unable to serve? And if unwilling, how is that substantiated? Is there another legal document required to pass over the first assignee in a POA chain of assignments? Any insight would be appreciated! SandPine
posted by sandpine to Law & Government (9 answers total)

It is my understanding that a Power of Attorney becomes invalid when John Smith dies.
posted by DanSachs at 9:03 PM on September 13, 2018 [1 favorite]

I had a case where a client (I'm a social worker) declared me as his POA. I was asked when the time came, and I simply declined and stated my reason why. It happened over a phone call.
posted by AlexiaSky at 9:10 PM on September 13, 2018

I’ve seen pretty basic letters written & signed to decline, something along the lines of “I, Firstpick, am declining to accept the POA for SoAndSo.” No reason needs to be given, but it may need to be notarized. That letter would likely need to be given to SecondPick so they could prove they’re the rightful agent. The only time i’ve seen someone declared unable to serve as POA was because they’d previously had someone named a POA for themselves, as they were unfit to make decisions for themselves.
posted by csox at 9:20 PM on September 13, 2018

My understanding based on my employment experience in IL, If it were determined in some way that the POA was unable (John says Sarah is POA, John has Stroke, Sarah has Alziehmers but wants to make decisions for John and won't willingly relinquish decision making rights). Ultimately adult protective services would be involved and assigned through court system If there is a secondary listed it would go to them or if there is other family it may go to them by order of kin, or a hospital may get permission from a medical standpoint. But the court system would decide what would happen next.

These cases can get ugly and can take a long time to resolve.
posted by AlexiaSky at 12:20 AM on September 14, 2018

If he is alive, who or what determines that he is unable to serve?

If I understand correctly, he does.
posted by flabdablet at 3:18 AM on September 14, 2018

That terminology is intended to apply when it is clear and uncontrovertible that 1) he won't or 2) he can't. So flabdablet has it.

And DanSachs is right. John Smith's power of attorney expires when he does.
posted by megatherium at 4:42 AM on September 14, 2018

...or when it's rescinded by the person who gave it to him, provided they still have the capacity to make decisions.
posted by flabdablet at 5:28 AM on September 14, 2018

Response by poster: Thank you for the answers/thoughts/suggestions.

SandPine
posted by sandpine at 9:03 AM on September 14, 2018

If the POA-holder is legally incompetent, that would probably qualify as "unable," even though the POA-holder might not be willing to admit it. If it came to a dispute, a court would probably have to get involved.
posted by praemunire at 10:33 AM on September 14, 2018