How do I get power of attorney for my dad, when his will specifies my sister in this role?
My sister, who lives near my 95-year-old father (in Pennsylvania) currently has power of attorney for Dad. She has indicated to me that it is specified in his will that she is POA. Dad will be moved close to me in New York, and we've decided that I now should have POA. How do I proceed here considering the reference in his will?
Expert Answer
Something seems amiss.
Since the power in a power of attorney ends when a person dies, it would be unusual -- and ineffective -- to name someone as a designated power of attorney agent in a will.
It might be just a matter of confused semantics, which is understandable confusion, given the amount of legal mumbo-jumbo that can enter into estate planning documents. It could be that your sister was named "executor" or "personal representative" in your dad's will, meaning that she will be responsible for managing any estate assets at his death and distributing them as the will directs. But it does not give her the right or responsibility to act as his agent in a power of attorney.
Mercifully, there is an easy solution: If your dad wants to empower you as his agent, he can simply do so now -- and make clear that he revokes any prior appointment that might have been in effect.
And one last thing: Given that your dad is moving and that it sounds as if it's been a while since he's looked at his will, now is the ideal time to have him review it and make sure it reflects his current wishes. If he owns a substantial amount of property, has a complicated scheme for distributing it, or is concerned about tax-saving measures, he might also consider hiring a New York attorney for the limited purpose of helping him review your dad's entire estate plan.