What happens if a power of attorney dies?

Kybill1952 asked...

My dad and I lost my mom several years ago. His brother, Harry, got him to moved to Lexington, KY from Covington, KY. In the meantime, Harry got my dad to give him the Power of Attorney, with no alternatives. In my dad's will, he gave Harry and his wife, all of his belongings. This includes his home, personal belongings and any estate that was left. Being his only son, I'm supposed to get $10,000 of his will. My dad was diagnosed with Alzheimer's.

My uncle, Harry, passed away back in January 2009. My question is, who has Power of Attorney, or who is paying for his services? If my aunt is, how much legal responsiblity do I have? Can I, being his only son, come in and take over his life so to speak? It also has been several years since I have seen my dad due to the fact my uncle told me to stay away. Any answers will be appreciated. I don't want answers from someone who thinks they know. I want answers from someone who deals with the legal aspects of this. If I have a case, can you go to court with me for representation?

Expert Answer

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.


Your complicated family situation raises a number of complicated questions—and none of them have easy answers, legal or otherwise.

First of all, be sure that your dad’s condition prevents him from making a revised will, which might be the cleanest solution. The law does require that every willmaker must have the mental capacity to make a will—that is, understand what a will is and does and who his or her beneficiaries might be. And some people retain the ability to do this even though they have been diagnosed with Alzheimer’s.

Any power that our uncle Harry had as your dad’s agent in the power of attorney died along with Harry, so that document is no longer relevant—unless there really as an alternate agent named.

So if your dad is no longer able or willing to make a new will, the wishes he set out in his old will control. Depending on how the will was written and the exact phrasing of the clauses in it, there are a number of possibilities for what happens to the property that Harry did not survive to take under your dad’s will. It may go to:

  • Harry’s wife, if they were simply given all the property jointly
  • any alternate beneficiary named to get the property as a back-up in the will
  • the person named in the will to get property that is left over—called the “residuary beneficiary”—likely if the will contains a clause that provides for “all property owned at death that does not pass under a specific bequest, including lapsed or failed gifts,” or similar language, or
  • Harry’s close relatives.

If you remain concerned about your dad’s will, you’ll probably need some help. Because it is important in this case to see the whole will and read its exact phrasing to interpret it, it may be worth your while to hire a local lawyer for that limited purpose. If you know of the lawyer who originally helped your dad draft the will, then he or she may be the best person for that job.

If this isn’t an option, then ask friends or relatives if they know of a local lawyer who is experienced in estate planning. As a last resort, you can get leads through the local bar association. Do an Internet search using the words “state bar” and the name of your city or county.

And finally, while it may not be easy and may not ultimately be satisfying, now that Uncle Harry is out of the picture, consider the possibility of mending your relationship with your dad, which could ultimately make this whole legal mess seem irrelevant.