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My wife is power of attorney for health and financial for her mother.

My wife's father has a power of attorney document which specifies his wife and two son's as power of attorney for health and financial.

My wife's father has been deemed incompetent.

Since my wife is power of attorney for her mother, and her father is deemed incompetent what power's does my wife have over her father?

The situation is her brother's live too far away to be helpful in making decisions.

Thanks,

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A power of attorney grants a person the authority to act on behalf of the grantor, and does not deprive the grantor the power to act in a manner that they would be authorized to, in lieu of a power of attorney. If A has power of attorney to act for B and B has power of attorney to act for C, A does not thereby gain power to act for C, nor does A take away B's authority to act for C. So power of attorney for your wife's father rests with his wife or sons. (An orderly way of arranging this is to state one person with authority, and successors, so let's assume that's what happened, and not that all three have equal and absolute power. But, coagents are possible, ni which case everybody has to agree).

There are a number of types of POA: they can be general, or restricted to certain uses (such as medical or financial transactions; or whatever the document specifies). We must assume that the POA in question is durable, otherwise the father's POA is ineffective because he is incapacitated. In Washington, for example, the law requires the words "This power of attorney shall not be affected by disability of the principal" or "This power of attorney shall become effective upon the disability of the principal", or similar words that clearly state the intent. Your mother-in-law would thus be able to act on behalf of the father, even if the brothers cannot or will not (assuming that all three were granted equal power); your wife could not (under any circumstances not involving the court).

A problem would arise if all of those with power of attorney were either unwilling or incapacitated. Supposing that the order of succession is Spouse, Son1, Son2, then Spouse has authority until her authority terminates with death, incapacity or resignation; and so on down the line. Subsequently, the court would judge what happens next, e.g. whether the daughter should be given power of attorney: power of attorney is not transferable (i.e. the last son could not pass the power on to someone not specified in the POA document).

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  • If everyone listed in the POA was exhausted, the POA would lapse. Someone could apply to a court for a guardianship or a conservatorship, but not for a change in the POA to add a new successor. – ohwilleke Jul 24 '17 at 3:15
  • In other words, power of attorney is not transitive. – PyRulez Jul 24 '17 at 13:02
  • Thank you for your detail response. I assumed this was the answer but wanted to check. The situation could arise where the mother is deemed incompetent and the brother's won't be willing to help the father, in that case we will probably have to petition for guardianship. Her father made a mistake in not making his daughter one of the agents on the POA, as she is the only one taking care of him. – RDotLee Jul 25 '17 at 3:25
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Your wife has no say at all.

This is as it should be. He decided who should have the power to make decisions for him and your wife wasn't someone he trusted to do that. Her competent mother does have the power to make decisions for him and should do so. Your wife shouldn't try to interfere with, or involve herself, in decision making related to him.

If her mother at some point in the future ceases to be competent herself and can no longer make decisions for her husband, then that will be a problem for her brothers to deal with and not one for your wife to deal with.

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  • Thank you for your answer. Like I mentioned in my previous comment to the other answer, her mother might be deemed incompetent at some point and the brothers won't be willing to help their father. In that case, we might see if her brothers will decline their role as specified in the POA and then possibly apply for guardianship. – RDotLee Jul 25 '17 at 3:27

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