Can my mom’s husband legally sign a Power of Attorney for her after she became incapacitated in the hospital?

UPDATED: Sep 30, 2022

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Can my mom’s husband legally sign a Power of Attorney for her after she became incapacitated in the hospital?

My mom is married and does not have a Will or Power of Attorney. She became sick and hospitalized in ICU on 01/15/2017. Her husband secretly paid for a Durable Power of Attorney on 01/18/2017, listed his name as the ‘agent’, took her ID, and got it notarized without her consent or signature. Within the Power of Attorney, it states he can ‘create or amend designations of beneficiaries’ and I believe this is his motive for getting the Power of Attorney because he is not listed as my mom’s beneficiary on a life insurance policy. While I understand he is her husband and by law he is obligated to make decisions and entitled to her assets, is what he did legal and is the Power of Attorney he has a binding document?

Asked on January 19, 2017 under Estate Planning, Indiana


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

No, it is NOT legal. A spouse has no power to create a power of attorney for his spouse; only each person has the power or authority to create a power of attorney for him/herself. If you what you allege is provable, the power of attorney is void--and potentially, he could even face charges for identity theft (for taking/using her ID--thus essentially claiming to be her) or for fraud (for misrepresenting his legal authority to those doing business with him under the POA).

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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