Q. I’ve been taking care of my mom in my home for a few years since my dad passed away. I have durable power of attorney for her finances and medical care but I don’t know exactly what I can or can’t do with it. She is still capable of doing most things for herself. My brother and sister don’t help emotionally or financially, they don’t call or visit. Currently, my mom’s will states that her estate should be divided equally between the three of us. Everyone I’ve talked to thinks this is very unfair and they have suggested that since I am her only caregiver and have the power of attorney I should change her will. What can or can’t I do?
A. Your mom certainly picked the right child to whom to give durable powers of attorney (DPOA). She trusted you to act for her as her attorney-in-fact or agent and most DPOA will give you the power to do almost anything the creator or “principal” could do. Since you have a Durable Power of Attorney, this document will still be effective even if your mom, the principal, becomes mentally incapacitated. If it is not a springing DPOA it is effective as soon as your mom signed the document before two witnesses and a notary. A springing power will not take effect until a specific triggering event happens, usually mental incapacity. This is an important document. Without a power of attorney, if someone is unable to handle their own affairs someone must petition the probate court to a appoint a conservator. The conservator would then need to post a bond, file and inventory and prepare accountings before any actions can be taken.
Just because it doesn’t seem fair and “everyone” you talk is suggesting you change your mom’s will, even if it’s possible that doesn’t make it right. In all probability if it is a properly executed will, your mother made it when she was of sound mind. Your siblings are more than your brother and sister, they are your mom’s and probably your dad’s children. A lot of thought goes into how someone wishes to divide their estate and your mom obviously wanted each of her children to be treated equally upon her death. If your mother is still mentally competent you could approach her about the ability and desire of changing her own will. As stated above, a power of attorney can allow an agent to do most anything. With that said, there are certain acts referred to as “hot powers’’ such as amending a living trust, changing the persons last will and testament, making gifts and changing beneficiary designations that are usually not allowed. Speak with an attorney and find out what you can and can’t do including the impact of influencing your mom to change her will. When your siblings learn of any changes you may have more contact from them and/or their attorneys than you ever dreamed.
Holly Nicholson is a certified financial planner in Raleigh. She cannot answer every question. Reach her at askholly.com or P.O. Box 97128, Raleigh, NC 27624