I have Power of Attorney for a single relative - do they need a Last Will and Testament also? I have a properly notarized Power of Attorney letter for a single relative in Kentucky. Does that relative also need a Last Will and Testament, or does my PoA cover whatever may need to be done when they eventually pass away?
There are two relevant laws of Kentucky. KRS Chapter 457 is about power of attorney, and KRS 457.100 specifies how the POA terminates, in particular (1)(a) says that it terminates when the principal dies (therefore on death of the relative, you have no power). KRS Chapter 391 governs intestate succession i.e. what happens if you don't have a will. The disposition of the estate depends on what living relatives there are. If the person is unmarried, the estate goes to the children or descendants. If there are no children, it goes to the parents; otherwise to siblings. If there are no living relatives whatsoever, then the estate goes to the state in escheat. A will is therefore necessary if the person wants something other than intestate default. Also, inheritance via intestacy is procedurally inconvenient compared to a simple will saying who gets what.
If that person becomes incapacitated or is deemed unfit to make their own decisions, will I be required to be physically present (for example, to sign something) to make those decisions if called upon? While it is customary for someone making decisions as weighty as removal of life support, to come to the hospital or care facility in person and discuss the issues with treating physicians, it isn't required. When you are physically there it is easier for you to personally assess the patient's condition rather than just taking someone else's word for it, and you have more informal access to everything that is going on in terms of people coming in and out of the patient's room, providers you wouldn't have known to speak to initiating conversations with you (e.g. there is typically an ER nurse for each shift, several residents doing rounds checking on a patient, and often also an outside specialist doctor involved in the treatment team). It is also usually easy when you are physically in a hospital to locate someone knowledgable and familiar with the kinds of issues you are facing at the moment to provide spiritual and religious guidance if you feel this would help you make your decision, while your neighborhood clergy person may not have a good understanding of these issues since they don't come up as often for someone is doesn't frequently spend time around people being treated in hospitals or hospices. And, this kind of pastoral counseling requires not just religious knowledge but an understanding of the options that are being presented through the lens of what is religiously and morally important about the differences between the different options. When I was an attorney for a hospital handling these issues for the hospital, we would have been willing to work with an out of state medical power of attorney agent without their physical presence. But, the fact that this was deep in the Rocky Mountains far from other urban areas (i.e. Grand Junction, Colorado) may have influenced a willingness to be flexible since it would often take a lot of time and money for someone to arrive in person. Also, while the medical power of attorney gives a specific person authority to act, an advanced medical directive is simply a document that goes into a patient's medical record that advises treating providers of the patient's intent and doesn't actually need next of kin approval or a medical power of attorney agent's say so to implement, although better practice is to seek that consent first in case there are any reasons why that advanced medical directive might have been procured improperly from someone lacking capacity or subsequently revoked. There usually will be forms for a medical power of attorney agent to sign, not authorizing a particular medical procedure, but authorizing treatment in general and providing personal and financial information about the patient in connection with admitting that person. But, these days, hospitals are relatively comfortable with handling that paperwork via fax or scanned copies sent via email, and some of the more flexible hospitals will even accept photos of signed documents sent via text message.
When they start giving legal advice ... unless your PA is a lawyer. In a nutshell, legal advice has the following characteristics: Requires legal knowledge, skill, education and judgment Applies specific law to a particular set of circumstances Affects someone's legal rights or responsibilities Creates rights and responsibilities in the advice-giver Unlike legal information - such as information posted on a street sign - legal advice proposes a specific course of action a client should take. For instance, it's the difference between telling someone what to do (legal advice) as opposed to how to do it (legal information). For your specific questions Can they research the CC&amp;Rs, Bylaws or other such states, federal statues to help me better understand the letter? Researching and even summarising is not legal advice. If they give opinions on what you should do as a result of that research it is legal advice. Can they write up a response letter that I would look at and approve ... Yes ... or if minor enough they could just respond? It depends on what's involved. If it is a purely factual response (&quot;Is this your car?&quot;) then this is ok. If it is legal advocacy, it isn't. Putting aside the legalities; how does your PA feel about you suing them if they stuff any of this up? If I was your PA, I wouldn't be acting as your agent without an indemnity.
The Kentucky restriction against "hit and run" is KRS 189.580, which says that The operator of any vehicle, whose vehicle…is involved in an accident …shall immediately stop and ascertain the extent of the injury or damage and render reasonable assistance Notice that the legal requirement is for the operator to do something: the law requires nothing of the vehicle itself. Supposing that you are correct that the vehicle was operated by someone who hit and ran, then if the police gain suspicions that such is the case, and if those suspicions are reasonable, then then could obtain a warrant to obtain evidence from the vehicle, which could be used against the operator. The fact that you (might) now own the vehicle would not transfer legal responsibility to you – responsibbility goes with the actor, not the instrument.
This is a close call, in the example that you suggest, because it won't have been executed with the proper formalities and it isn't clear that the content at a url would be fixed in its language at the time that the Will is executed. Subject to an exception for personal property memorandums (and a more subtle one for powers of appointment in trusts) you can't change the terms of a Will once it is signed except by a Codicil executed with the same formalities. Certainly, the best practice would be to assume that the answer is no. There are times when a reference to an external document in a will is allowed (e.g. a reference to real property by address rather than a full legal description found in a recorded deed), but a list of beneficiaries would ordinarily not be allowed unless it was effectively a reference to vital statistics records (e.g. "all children born to or adopted by me.") In general, references to external documents are not allowed when used to establish the nature of the testator's donative intent (a "testator" is someone who writes a will), unless it "describes the writing sufficiently to permit its identification" and can't be modified after the Will is signed, but can be used to establish general facts about reality. One exception in Colorado is that a "personal property memorandum" designating who will receive specific items of tangible personal property can be incorporated by reference and does not have to be executed with the same formalities as a will. It isn't clear to me if a url could be a valid personal property memorandum and that issue has never been tested in Colorado. Colorado's probate laws are based on the Uniform Probate Code and would be substantially identical to any other jurisdiction that adopted the Uniform Probate Code's substantive provisions. The primary statutes governing this (which aren't necessarily easy to understand without context) are: Colorado Revised Statutes § 15-11-502. Execution--witnessed or notarized wills--holographic wills (1) Except as otherwise provided in subsection (2) of this section and in sections 15-11-503, 15-11-506, and 15-11-513, a will shall be: (a) In writing; (b) Signed by the testator, or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (c) Either: (I) Signed by at least two individuals, either prior to or after the testator's death, each of whom signed within a reasonable time after he or she witnessed either the testator's signing of the will as described in paragraph (b) of this subsection (1) or the testator's acknowledgment of that signature or acknowledgment of the will; or (II) Acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. (2) A will that does not comply with subsection (1) of this section is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting. (3) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting. (4) For purposes of this section, “conscious presence” requires physical proximity to the testator but not necessarily within testator's line of sight. (5) For purposes of this part 5, “will” does not include a designated beneficiary agreement that is executed pursuant to article 22 of this title. and Colorado Revised Statutes § 15-11-503. Writings intended as wills (1) Although a document, or writing added upon a document, was not executed in compliance with section 15-11-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (a) The decedent's will; (b) A partial or complete revocation of the will; (c) An addition to or an alteration of the will; or (d) A partial or complete revival of the decedent's formerly revoked will or a formerly revoked portion of the will. (2) Subsection (1) of this section shall apply only if the document is signed or acknowledged by the decedent as his or her will or if it is established by clear and convincing evidence that the decedent erroneously signed a document intended to be the will of the decedent's spouse. (3) Whether a document or writing is treated under this section as if it had been executed in compliance with section 15-11-502 is a question of law to be decided by the court, in formal proceedings, and is not a question of fact for a jury to decide. (4) Subsection (1) of this section shall not apply to a designated beneficiary agreement under article 22 of this title. and Colorado Revised Statutes § 15-11-510. Incorporation by reference A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. and Colorado Revised Statutes § 15-11-511. Testamentary additions to trusts (1) A will may validly devise property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person, including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death. (2) Unless the testator's will provides otherwise, property devised to a trust described in subsection (1) of this section is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised, and is administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death. (3) A revocation or termination of the trust before the death of the testator causes the devise to lapse, but exhaustion of trust corpus between the time of execution of the testator's will and the testator's death shall not constitute a lapse; a revocation or termination of the trust before the death of the testator shall not cause the devise to lapse, if the testator provides that, in such event, the devise shall constitute a devise to the trustee of the trust identified in the testator's will, and on the terms thereof, as they existed at the time of the execution of testator's will, or as they existed at the time of the revocation or termination of the trust, as the testator's will provides. and Colorado Revised Statutes § 15-11-512. Events of independent significance A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is such an event. and Colorado Revised Statutes § 15-11-513. Separate writing or memorandum identifying devise of certain types of tangible personal property Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing shall be either in the handwriting of the testator or be signed by the testator and shall describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will. There is not a statutory definition of a "document" or a "writing" in the Colorado Probate Code.
Sources Florida Power of Attorney from the Florida Bar Association is a consumer pamphlet summarizing the laws in regard to a power of attorney. The actual laws are in the Florida Code sections 709.2100 thru 709.2402 Health Care Advance Directives from the Florida Health Care Administration is a consumer guide to Living wills, surrogate designations, and related issues. Florida Living Wills Laws from FindLaw lists legal provisions related to living wills in Florida. The relevant code sections are stated as 765.101, and subsequent sections (Health Care Advance Directives). Terminology The person who makes the Power of Attorney (POA) is the principal -- the mother in the situation described in the question. The person appointed to do things for the principal is known as the agent, and is sometimes also called the attorney-in-fact. A Limited POA gives the agent power only over a particular transaction, or over a single or small number of types of transactions. One might give a limited POA to manage a particular investment, or to sell a car or a house, say. A General POA gives the agent power to do anything that the principal could do in person, or anything except for some specifically excluded things. A Durable POA remains in force even if the principal becomes incapacitated (for example with serious dementia). It includes specific language to this effect. It is usually also a general POA. Any POA that is not durable is not in effect when the principal becomes incapacitated. The situation described in the question would often be met with a durable POA. A durable POA: contains the words: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,” or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity. (Section 709.2104) A Medical POA, sometimes also called a Healthcare POA grants the agent power to make medical or health choices for the principal. It is also known as a health care surrogate designation. It is normally a separate document form a POA dealing with non-medical issues, sometimes called a financial POA, even if the same agent is appointed for each. A living will is &quot;a written or oral statement of the kind of medical care you want or do not want if you become unable to make your own decisions.&quot; (from the Advance Directives pamphlet linked above) Living wills and Healthcare POAs are collectively known as Advance Directives. The pamphlet says: [I]f you have not made an advance directive, decisions about your health care or an anatomical donation may be made for you by a court-appointed guardian, your wife or husband, your adult child, your parent, your adult sibling, an adult relative, or a close friend. Under section 709.2102: “Incapacity” means the inability of an individual to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income. Agent Any competent adult that the principal selects may be an agent. The pamphlet linked above says: Any competent person 18 years of age or older may serve as an agent. Agents should be chosen for reliability and trustworthiness. Certain financial institutions with trust powers also may serve as agents. The agent may hire assistants, such as a lawyer,, an accountant, or a realtor. But the agent may not delegate or transfer his or her powers as an agent, or appoint a sub-agent. The agent must act as instructed by the principal. When no specific instructions apply, the agent must act in the best interests of the principal, to the best of his or her understanding and ability. Creating a POA The POA must be in writing, and signed by the principal and two witnesses, and notarized. The principal must be competent when the POA is signed -- that is, must be in condition to understand the purpose and effect of the POA, and what is going on generally. (See the definitions section above.) The agent must accept the POA, and often signs the POA to acknowledge the POA and accept the responsibility of acting as agent. A POA may appoint backup agents to act if the first agent is unable to act, or resigns, or dies. It may also appoint multiple agents any of whom may act, but this can cause problems if the agents disagree. The text of a POA may be drafted by a lawyer. But there are also software programs that will produce the text of a POA, after appropriate information is entered and questions are answered as to the desired effects. Such programs normally produce text tailored to ma particular state's laws. Ending a POA The principal may revoke a POA at any time, if the principal is competent. A principal may also revoke a living will or other advance directive at any time. The agent may resign at any time If either agent or principal dies the POA is ended. (If a POA appoints multiple agents, it ends only if they all die or resign.) If the agent becomes incapacitated, the agents power ends. If there is not other agent, the POA ends. If the agent is married to the principal, a divorce or separation or a petition for a divorce, ends the agent's authority, unless the POA explicitly says it will continue after a divorce or separation. If a legal process to appoint a guardian is started, the POA is suspended, unless the agent is the principal's &quot;parent, spouse, child, or grandchild&quot;. (This may include stepchild.) If a guardian is appointed, the court will rule on whether the POA continues; often it will not, unless the agent is also the guardian appointed. Florida code section 709.2109 (3) (Link above) says: If any person initiates judicial proceedings to determine the principal’s incapacity or for the appointment of a guardian advocate, the authority granted under the power of attorney is suspended until the petition is dismissed or withdrawn or the court enters an order authorizing the agent to exercise one or more powers granted under the power of attorney. However, if the agent named in the power of attorney is the principal’s parent, spouse, child, or grandchild, the authority under the power of attorney is not suspended unless a verified motion in accordance with s. 744.3203 is also filed. If the POA includes an ending date or condition, it ends when this occurs. A third party, one who is neither the agent or the principal, can only have a durable POA revoked by petitioning a court to do so, usually in connection with the appointment of a guardian. The court will do this only if a guardian is needed, and that the action of the agent under the POA is not sufficient to serve he interests of the principal; or if the agent is shown to have been untrustworthy or neglectful, or has become incapacitated. Living wills normally remain in effect unless revoked, even if a guardian is appointed. Conclusion No one has an automatic right to be appointed as the agent, no matter what relationship to the principal that person has, or for how long a relationship has existed. The principal may choose any agent that s/he trusts and thinks will be able to do the job well. The husband or stepchildren described in the question will not be able to have the POA set aside by a court unless they can show that the son has not acted in the mother's best interests or has acted dishonestly in regard to the mother, or has misused the powers granted by the POA. If they can show that the son used undue influence to get the mother to sign the POA, that might cause a curt to rule against the POA. But they have no automatic claim to cancel the POA, just because they are related to the mother. The Florida laws about a POA are very similar to the laws in NJ and NY that I have had occasion to deal with before. I held a durable POA and a healthcare POA for my father, who lived in NY state.
Attorneys are universally required to tell the truth at all times and generally, they do. They are not allowed to lie on behalf of their clients or themselves. This doesn't mean that someone else's attorney necessarily has your best interests at heart. And, attorneys can, for example, fail to mention options that exist, but might not be the best for the attorney's client. Also, if an attorney's client lies to him or her about the facts, the attorney could conceivably say something inaccurate while believing it to be true. In the kind of meeting you are describing, however, most likely, the attorneys are simply going to explain your parents' estate plan, over which you have no control or say in any case, and there is no reason for suspicion or paranoia.
No. As long as it is owned by him he is free to do as he likes. The wife / children do not have any claims as it is ancestral property and they can have a claim only after his demise. Until then, he is free to do as he likes legally.