Cana Power of Attorney be transfered?

UPDATED: Apr 22, 2011

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Cana Power of Attorney be transfered?

Dad is unconscious in Neuro ICU after brain hemorrhage/stroke 3 weeks ago. He never revoked an old POA or created a new one naming me (daughter) as POA like he wanted to do. People named in the old POA don’t want the responsibility now. Can they transfer or default to me by recusing themselves or do I have to petition for guardianship? If I have to petition, what state do I do that in? I live in TX; Dad is resident of MT; stroke occurred while traveling in CO (he’s being treated there).

Asked on April 22, 2011 under Estate Planning, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

No, a power of attorney, or POA cannot be transferred. The only person who can invest power of attorney in someone is the person creating hat power--in this, your father. The power is personal to them; it's not like a contract to do construction, which can be assigned or subcontracted. The person's given a power of attorney may refuse to exercise it, but they can't give it to someone else. (Often, a POA will designate a back up attorney, so that if the first person won't do it or is unavailable, it then goes to someone else--but that designation is made by the person granting the power, when the power is made.)

However, as the child, if the people with a POA refuse to exercise it, you, as next of kin, will be consulted on medical decisions in any event--assuming there is no spouse who would be first in line to exercise this authority. That's not getting the POA, but will give you substantial say over what happens medically.

As for other issues (finances, bank accounts, insurance, paying bills, etc.)--you may have to seek guardianship to take care of them. You would most likely do so in the state where your father is being treated, but this is easily determined--you can contact the CO courts and/or ask the hospital's attorney/legal department, which has undoubtedly been involved with similar matters before.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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