Elder Law Answers
Can I Make Gifts If I Am an Agent Under a Power of Attorney?
I am an agent under my mom's power of attorney. Do I have the power to gift money in her place?
Read moreCan an Agent Under a POA Pay His Mom's Bills If She Refuses?
- November 22nd, 2023
Q
My 81-year-old mother lives in a continuing care community. She is bipolar and sometimes has questionable judgment. The bank in the community was taken over last summer by another bank. My mother does not trust the bank and refuses to order checks or use the bank, but she does use the ATM for cash. She has refused to pay her monthly facility fee for the past four months because she has no checks. My brother is her agent under a power of attorney and is being asked to use my mother's money to pay her fees (which have accumulated to $12,000+). Can he do this without her permission? He has access to her money and is willing to pay the bill. We just worry about legal consequences for him if he uses her money without her permission.
A
That sounds like a difficult situation. Without seeing the durable power of attorney, we can’t give you a definite answer. Some powers of attorney are effective as soon as they are signed and others only become effective if the person granting it becomes incapacitated. The latter are called "springing" powers of attorney. If your mother's document is springing, then your brother cannot act until her incapacity is determined, usually by a physician.
But assuming the power of attorney is current, your brother can go to the bank to gain access to your mother's account and pay her bills. That is his legal power and it may go smoothly. On the other hand, the bank may feel it needs to notify your mother, or she may discover what your brother is doing on her own. In either case, she may revoke the power of attorney. If she objects to the payments, the bank may view that as a revocation. Either way, nothing ventured, nothing gained. So, assuming the power of attorney is not springing, we would recommend that your brother go to the bank to seek access to your mother’s account to pay her bills.