Personal risk in assuming Power of Attorney

Question

Florida, United States:

Following my father's passing I am being asked to take on Power of Attorney for my mother whose cognitive function is in decline.

This is something I really don't want to do, because for one I live on the other side of the country and second my relationship with my parents was not a particularly loving one.

But, in any case, what came of the chaos after my father's passing was me performing many of the tasks that having POA would entail anyway: managing her affairs & finances, etc out of simple necessity and because she wants me to.

I am worried as to what kind of personal exposure to risk agreeing to legally being POA would carry and what happens if I simply decline.

That is, if my mom is sued by somebody for some reason, does that mean I am being sued, and my personal assets are at risk, rather than just hers'?

And, what if she runs out of money, would I be personally financially liable for covering her expenses? I mean I would help of course but I am not a man of means and I couldn't possibly cover her costs without cashing out my own retirement savings and I don't want to jeopardize my own livelihood.

And then, what if I simply don't have time to deal with her affairs, that is where I am being put in a position where I have to choose between keeping my job and my personal relationships at home versus going to deal with things over there, would having POA force me to do the latter?

Thank you

Answer 1

That is, if my mom is sued by somebody for some reason, does that mean I am being sued, and my personal assets are at risk, rather than just hers'?

Having power of attorney doesn't mean that you become "one and the same" person, it just means that you can stand in their place legally. If somebody sues your mother, you are authorized to act on your mother's behalf, but that doesn't mean that you are liable for any judgement.

Of course there is a fiduciary responsibility to act in your mothers best interest, and violating that can open you up to suits that you are responsible for (because the suit would be against you, not your mother).

And, what if she runs out of money, would I be personally financially liable for covering her expenses?

No, you wouldn't be. Debts would be settled the same way as if she didn't have anybody acting as PoA. She (you) could declare bankruptcy on her behalf and have the debts discharged. This doesn't obligate you to pay them.

And then, what if I simply don't have time to deal with her affairs, that is where I am being put in a position where I have to choose between keeping my job and my personal relationships at home versus going to deal with things over there, would having POA force me to do the latter?

This is a personal decision for you. You could alternatively pursue having her declared as an "adult ward of the State".

You need to consult a lawyer if you take on full power of attorney, to both protect you, your assets, and your responsibilities. This is something that you really need a lawyer to draft so that the lines are clear, and the expectations are as well. You may need to get a court involved if she is not of clear mind to sign these papers.

Answer 2

The chapter covering power of attorney in the Florida statutes is here. The person granting the power has to do certain things including specify the scope of that power (the person's attorney is supposed to watch out for the person's interest in this matter). As the agent, you would be most interested in 709.2114 which are your duties and 709.2115, 709.2117 your liability. The agent does not become personally liable for the actions of the principal,so if someone sues the principle, the agent doesn't also get sues or become personally liable for losing in court. The agent would be liable for wrongful acts undertaken as the agent – embezzlement, bad faith financial decisions, etc. It depends partially on what liability provisions are in the POA. The agent can also resign (in case the job becomes too burdensome): you are never forced to do anything, you are just prohibited from doing bad things. However, doing nothing at all could be a bad thing. The agent has a fiduciary duty to the principle; if you do nothing, the principal might end up in financial trouble. You are required to act, lest you be held liable for reckless indifference to the purposes of the POA or the best interest of the principal. So if it becomes too much bother, you would need to resign.