POA paperwork - copies vs. original

ericasjJune 6, 2008

Is there ever a time that you need to produce the original power of attorney with the seal, as opposed to a copy?

The reason I ask is, I have copies of my mother's paperwork but the original is at her lawyer's office. He says it is in effect now (it is durable) even though I don't have the original, but won't release the original unless he gets instructions from my mother or her doctor, for her protection. It doesn't specifically say in the POA that a copy will work as an original.

Here's the situation: my MIL passed away from a massive stroke in February, and I saw how fast things can happen. I'm sure my SIL was glad she had all the necessary paperwork handy for dealing with the hospital. It would have been a real hardship to have to trek to a lawyer's office to get paperwork at that time.

Then my own mother had a TIA in April, and after that I thought I'd better be ready with paperwork myself. Especially after having some difficulty getting medical records sent from the hospital to her primary care doctor. Her lawyer actually suggested that I try to have the doctor call if I was afraid of upsetting my mother by asking her to call.

I told the doctor that I didn't want my mother to have to traipse around getting medical records, and asked him to call the lawyer to release the original. (She is 90, and was still driving at that point.) He flipped out, said my mother wasn't incompetent and he absolutely wouldn't do it. I told him I knew she wasn't incompetent but wasn't in good enough shape to run around dealing with medical bills and records. Anyway, I let it drop for the time being.

Long story short, she's had a more serious "brain attack" this week. (They still haven't said if it was an official stroke, but I think so because they are saying she needs some rehab before trying to go home or to assisted living, her memory is much worse, and she's having trouble reading. Her ability to find words and speak intelligibly is getting better, but her speech problems definitely lasted more than 24 hours.) The hospital asked me if she had a living will, whether I had a medical POA, etc., I gave them a copy of everything and that was fine.

Also, she's in the midst of selling one of her two houses, and hadn't picked up the mail for several days at the one being sold. Then she went in the hospital. When we went to check her mailbox, there was nothing there. When I went to the PO to ask about getting her mail released and changing her address (which I got her agreement about first), they wanted the POA. Again, the copy was accepted.

I'm really leery of asking another doctor about this after the first reaction I got. And my mother is in no mental shape to call the lawyer herself. She hasn't even attempted to use the hospital phone yet (which she was fine with after the first TIA in April).

What I'm wondering is, will I continue to be able to get pretty much everything done with copies of the POA, or am I going to run into trouble without the original? I'm going to either be involved with getting her into assistive living or getting her house ready for her to move back into, paying medical bills, etc. If she's going back to the house, I need to know I'll be able to do things like contract for easier entrance steps to the house (which she had planned to do already). If she's going to try staying at home, I want to get as much done as possible before she gets back there.

Also, I just plain don't want to feel like I'm being sneaky going ahead with things without having the original!

Thanks for any advice.

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Funny you should bring this topic up, and I hope some legal eagle will set us straight.

Later today, as a matter of fact, I am bringing Mom to her attorney to get the originals of her wills, codicils, Lord knows what. Mom has heard from other residents of the senior independent living community where she resides, that it is best to have the originals in one's possession rather than to let the attorney keep them. The reason she has been told, is that, should she pass away, the lawyer can charge the remaining family several hundred dollars JUST TO GET THE ORIGINALS! Now, I find this hard to believe, thought it was just senior center chit chat. Now I'm not so sure.

I have copies of all the above, and so does Mom. She is getting more forgetful, but she was He** bent on calling him, he said fine, I'll get them out of storage for you, and off today we go together....he made it clear she MUST come get them herself IN PERSON. So HE knows it is HIS CLIENT, in person that he is releasing them too. (She doesn't drive, hence me taking her), but I also kinda feel like I should just wait out in the car lest it appear I'm coercing her to get those documents!!!

So, her plan is to get them, and for me to keep them in safe storage myself, thinking she will be saving me hundreds of dollars later on.

All her docs have copies of her living will, DPOA, and her banks have copies of my financial DPOA for her. I know that is important, but I too would appreciate a response from a knowledgeable person on the benefits of getting the originals OUT of the attorneys office.

    Bookmark   June 6, 2008 at 7:36AM
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I am not at attorney. I have dealt with powers-of-attorney on several occasions in the last 20 years (including now) and speak from that experience.

"I told the doctor...asked him to call the lawyer...He flipped out, said my mother wasn't incompetent and he absolutely wouldn't do it."

If I was the Dr., I wouldn't do it either. Wouldn't be worth "flipping out" over, but no need for his involvement.

As to the document itself, unless quite ridiculously written, POA does not require incompetence in order to be in effect. Assuming you are the named attorney-in-fact, If your mother wants you to handle things for her via POA, you can do it. Period. That's why all your copies are working OK. You have been recognized as a legally designated decision-maker on your mother's behalf.

It's your attorney who is being a considerable jerk. The attorney doesn't know the Dr. How could he take his word on the telephone for anything? Simply obtaining the original document is a non-event. Signifies nothing in particular. In fairness, this shouldn't be the Dr.'s responsibility in any event.

Assuming you are the named attorney-in-fact in the document, if the attorney that wrote it says "it is in effect" but will not release the original to the attorney-in-fact (you) that he, himself, wrote into it, I think that's hilarious. This guy needs to be straightened out pronto. In addition to being a self-serving nuisance to you, It appears to me he may be on the verge of some liability himself if he doesn't shape up. The documents should have been written in a way to preclude ALL of this. Plus he's acting in obstruction to a power he, himself, has said is legally in effect.

Your document copies should serve you well. However, I would be in this attorney's face at the earliest opportunity.

    Bookmark   June 6, 2008 at 10:17AM
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You may have to get her doctor to give a statement about her mental state to give to her attorney.

After my husband died, I put my estate in order. My attorney gave me a list of papers for my POA. He said put the original POA in a safe deposit box, give a copy to your POA. This is for my protection in case my POA gets greedy. Since my POA is a friend, she has nothing to gain, but I still just gave her a copy. I sent her a letter with the names of two of my neighbors who can let her in my home when/if it becomes necessary. I wouldn't trust my kids with any power over me. I'm seen enough in my lifetime to know that money/greed can change the people you trust most. Even if they take good care of you they may cheat their siblings out of their share.

    Bookmark   June 6, 2008 at 2:00PM
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I have durable POA (both Finacial and Health Care) for my mom, my dad and my brother. I have never had to produce the original, copies have been accepted for every thing. I do believe the only time you might have to produce the origianl would be for things like registering the POA so you could see property and such.

All POA's cease when the person passes away. Then you will need many copies of the death certificate, because everyone will want one to prove the person has passed.

    Bookmark   June 6, 2008 at 4:13PM
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I don't understand your lawyer's actions either. I accompanied my mother when she arranged her legal matters with her attorney, so perhaps that made a difference. Anyhow, the attorney gave my mom the originals for her will, financial POA, and health care POA. He also gave her copies. He told her to put the originals in a safe deposit box and keep the copies in a safe but easily accessible place at her home. He's also got copies on file, and I made copies of the copies for myself too.

Eventually, we had to provide copies for her doctors, hospital, and bank to keep on file. I always keep a copy of her POA for health care and DNR in my car so I can have them on hand whenever I take her to the doctor or ER. I've never had a problem with using the copies; that's what they're for.

When my husband & I did our wills, trusts, POA's, etc., our lawyer signed us up with DocuBank, an electronic storage and access service for healthcare directives. We both carry a DocuBank Emergency Card that makes all of our critical healthcare documents available. Obviously, DocuBank dosn't have originals and isn't the lawyer, but their copies would be counted as originals. In addition, we've both supplied our doctors & hospitals copies of our POA's and I take a copy of my husband's with me when I take him to the doctor.

Have you settled the issue of the hospital sending its records to your mom's primary care physician? That is absolutely nothing your mom should have to keep track of. I don't understand why there would be a problem and why the hospital wouldn't willingly, without any prodding,send a copy of its record to her personal doctor.

Here is a link that might be useful: DocuBank

    Bookmark   June 6, 2008 at 5:53PM
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Never heard of DocuBank before but am going to check it out for myself. I will be by myself when all is said and done with my parents and my brother. I have no children and no one I am super close to, so this might help to at least alert health care folks to my wishes. Thanks sambo!

    Bookmark   June 6, 2008 at 7:47PM
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One word of caution.

Check with her bank to see if they will accept the POA that you have. Some require their own special one outlining the type of accounts, investments, etc. that you might or might not have access to. It's more than just being able to sign the checks.

    Bookmark   June 6, 2008 at 8:23PM
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I had to have the orig to buy a house without his signature and I sure hated to let it out of my hands, was afraid it would get lost in the mail. I also needed the orig. to cash in his IRA.

My POA does not end with my death. My attorney added something to the POA, so she could pay my remaining bills.

    Bookmark   June 6, 2008 at 10:51PM
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Certified copies of POA's can also be obtained which will stand in for original.

POA's end with death of the principal. After that, paying of remaining bills, etc. are handled by a personal representative, commonly called executor or executrix, named in a will by the testator who has become the decedent. Wills are entirely separate documents from POA. Principals of POA's are very frequently also named personal representatives in wills.

FWIW you can google "Power of Attorney" and "Wills" and "Trusts" and all of this stuff.

    Bookmark   June 6, 2008 at 11:40PM
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I know here, where I live, I will have to register the POA with the county in order to sell the house. However I do not intend to sell just yet so am not rushing. My attorney will handle a lot of this if and when the time comes.

For the IRA's there were forms to be filled out to be added on as POA, same with the IRS, they have their own forms they want filled out. Our accountant did not know this, got the income tax back. Needless to say he is no longer the accountant for this family! My attorney is also an accountant so she will handle all from now on.

The banks did not give me a hard time, I gave them copies, they were sent to legal and in no time I was on the bank accounts.

If there are IRA's involved you should check with the investment company on how they handle POA's. My parents are invested with different companies and I found out they handle things a little different. There have been cases where the spouse can not get money out unless they just cash the whole thing in, which results in income tax if it is a traditional IRA. I am learning as I go and am very blessed that my attorney is there to answer my questions and guide me through.

    Bookmark   June 7, 2008 at 6:40AM
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Just a quick thank-you for all the replies, as I'm trying to get an early start working on my mother's houses today. FYI, I'm on her main checking account as joint owner, as POA on another one, Transfer on Death on one brokerage account, beneficiary on IRAs, and am executor in her will. So in a lot of ways things are set to go smoothly.

I don't want to antagonize this lawyer because basically I've liked him over the years, and he is also a stockbroker. My mother and I both have accounts there, and he's one of the few guys over the years that I feel has given her good financial advice. If I eventually inherit her account, I'd planned on combining it with mine and staying on with him. I think I'm going to keep using my copies unless getting the original turns into an emergency.

Oh, and he is the one who drew up her will, also. I was in on all the paperwork being done; I was just glad she finally signed it all after thinking about it for 5 years. At that point, I wasn't going to quibble about where the original was kept.

You've brought two things to my attention that I hadn't thought of--having a POA on the IRAs, and the issue of needing the original POA to sell the house.

She has to take out a minimum from the IRA each year. If she isn't able, and I don't have the power to take out that amount for her, she'd be hit with a tax penalty.

Needing the original to sell the house is a good reason for me to want it on hand; maybe when she's a little better I'll ask her again to call the lawyer herself. I know she wouldn't want the pending sale to fall through because she was incapacitated.

    Bookmark   June 7, 2008 at 7:53AM
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The lawyer may not want you to have the originals because he might think you will move her money and he will loose his fees. That is the only reason that makes sense to me. My friend has a broker that doesn't like for her to draw on her invested money to buy a car or a home. She is so mousy, but he finally made her so mad, she told him, "You are not my husband and you have no right to not let me have it".

    Bookmark   June 7, 2008 at 3:03PM
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Attorneys are hired hands. They have knowledge, expertise, and licensing that is very valuable from time to time and for which they are compensated, hopefully fairly. However, sometimes some attorneys can overstep their authority. This attorney's refusal to accept and act upon the attorney-in-fact's instruction is overstepping. He acknowledges that the power is in force but refuses to act regardless. I don't like that. I would not accept it.

    Bookmark   June 8, 2008 at 1:40PM
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If someone does me that way I check it out further. I had an assistant DA give my son a bad time and I called the DA's office and they made him apologize. I was in the hospital at the time and he escorted me to the nurses station, he called all the nurses over and apologized to me and my son, it was literally a public apology.

    Bookmark   June 8, 2008 at 2:16PM
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