does a durable power of attorney supercede a living will?

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Latest post 07-05-2009 4:22 PM by Ford. 6 replies.
  • 06-30-2009 10:01 AM

    • ccunurse1
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    does a durable power of attorney supercede a living will?

    my husband and I had living wills drawn up in 1999. we were then divorced and separated for a year, now back together for last 3 yrs. we never changed anything in wills during that time. Our living wills and medical/durable power of attorney paperwork all stated each other as advocates.

    suddenly, I just found revised MEDICAL/DURABLE POA papers in the safe that my 'ex' had drawn up in march of 2009. without my knowledge. these state that his sister is his medical/durable/financial POA.

    does this negate the living will where I am listed? as I read it, it would seem that SHE would have control of all the money, including house/rentals that we have that have both our names on it? how does this work??

  • 06-30-2009 4:18 PM In reply to

    Re: does a durable power of attorney supercede a living will...

    "Living will" is the popular name given to what lawyers call advance medical directives. These documents state what kind of life sustaining care you want when you are unable to speak for yourself. They may or may not nominate someone to make medical decisions for you when you are incapacitated. Typically, the nominated person would then have to seek apppointment from a court as your guardian to be able to make those decisions.

    A medical durable power of attorney is the document that is normally used, however, to grant someone the power to make medical decisions for you without the need to be appointed as your guardian. The powers that the agent has are specified in the POA document.

    A financial durable power of attorney is the document typically used for granting the power to handle your financial affairs. Note that the agent can only handle your financial assets, not those of your spouse. Thus, if your husband's sister is granted the POA to handle his finanicial affairs, that would apply to his assets and interest in assets, but she would have no control over your assets or interest in assets.

    The agent for the medical POA and the financial POA need not be the same. To the extent that there are different people nominated as guardian in the living will and who is the medical POA, how that plays out will depend on exactly what the documents say, when each was executed, and the applicable state law. You'd want to see a local elder law or probate attorney about that.

  • 06-30-2009 10:22 PM In reply to

    • ccunurse1
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    Re: does a durable power of attorney supercede a living will...

    oops! i goofed in the original msg! I meant to ask..." does a durable power of attorney supercede a LIVING TRUST?'. Not a will, but a TRUST that included me, my ex-husband, and our children. keeping in mind we are now divorced, but back together.

  • 07-02-2009 3:13 PM In reply to

    Re: does a durable power of attorney supercede a living will...

    Such matters are controlled by state law. What state you are in can make a difference.

    I am a California lawyer.  In California:

    If a person becomes unable to manage their assets, then that person's assets in a trust are managed by the trustee and the person's assets not in a trust are managed by the financial POA. 

    Look at the legal title for each assets; deeds, bank accounts, pink slips, etc. to see if they are in the trust.  Also read the trust to see if the trust declares certain assets to be in the trust.

    After death, the POA is terminated, but the trust continues.  Generally, assets not in the trust are then put into the trust by the Will and a probate, or a Declaration instead of a probate if the estate outside the trust is small. 

    Health POA and Directives are separate from trust and Financial POAs.

    See a lawyer in your state to get advise on your specific documents. 

    HatTrick

  • 07-02-2009 11:37 PM In reply to

    • Drew
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    Re: does a durable power of attorney supercede a living will...

    Laymans guess:

    There may be levels of complications

     

    1. The living trust probably stands on its own--BUT if it refers to you as his spouse or the reverse and you all are not married it may cause issues as to how to follow it.

    2. If you are not married then w/o a will or trust you stand to inherit zippo from each other  .  Generally an old will which names a spouse by status  becomes real problematic upon divorce ---at the very least it needs to be checked by competent counsel to make sure it would work as intended. EG it it named Barbara Jones to inherit then Barbara ight be safe, but if it names wife of Henry Jones to inherit and Henry has no wife--OUCH!

    3. If lover grants a POA to yet a third person that person might be able to  move assets out of persons name so as to defeat funding the trust. In theory POA is supposed to act to benefit power grantor --but Sis could act to squeeze out unremarried lover.

    4. If the POA has not been delivered to Sis then its power is zippo--and if maker somehow became a mental vegatable there might be some question as to his ability to deliver the powers after he became incapicated.



  • 07-03-2009 10:30 AM In reply to

    • ccunurse1
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    Re: does a durable power of attorney supercede a living will...

    wow, Drew, you hit everything that was going through my head exactly. Those are the exact concerns that I am having with this.

    my plan: I am going to talk to him about it and then see a lawyer to have things revised. I need to find out why he changed this all of a sudden...must be he knows something i don't?? I thought things were going well, but I must be mistaken.

     

    thanks for all of your help! I could definitely see his sister moving things out of my name...we aren't exactly the best of friends...

  • 07-05-2009 4:22 PM In reply to

    Re: does a durable power of attorney supercede a living will...

    If both your names are on things, she wouldn't have complete control.  You would still have your own power.

    You shouldn't have property in both names unless you are married or have a formal partnership with documentation.  That's just a bad idea.  The law has methods for distributing property when a marriage fails, or when a partnership fails.  The law's method for dealing with problems between co-owners is just BAD.  You have to sue for "partition" which forces a judicial sale of the property.

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