Legal Question in Elder Law in North Carolina

My 77 year old mother who has medical problems but is of sound mind lost her husband approx 1 yr ago. There are 6 children and 2 of them had her sign some kind of paperwork which states that one has financial control and the other has medical power of attorney and both of them are at least 2 hours away if she gets ill and needs to go to the hospital. We cannot tell if what they have is 2 separate forms or a durable power of attorney. In the meantime another sibling has moved his family into her home to take care of her and they cannot make medical decisions. What kind of forms does she need to replace whatever existing forms ther are so that she can appoint the authority to the two sons that are taking care of her. She has no copies of what she signed and the other two children will not provide them. She needs something for her medical care, financial decisions, and a will. If she completes new forms will this cancel out any existing forms. These were not done through an attorney.

Thank you for any assistance you can provide.

Asked on 8/02/11, 9:53 am

1 Answer from Attorneys

0 users found helpful
0 attorneys agreed

Your mother, if she is mentally competent, can execute a revocation of the power. It would help if she had copies so I could see what these documents say.

Did you check with the register of deeds and/or clerk of court to see if anything was filed? If not, then I WOULD file the revocation of the power of attorney. The revocation must be signed by your mother and notarized. I would file the original and make 3 copies. Let your mother or her new power of attorney keep one for her records. The other copies I would send to the agents under the medical and financial powers of attorney. You can find revocation of power of attorney forms online - some may be free and some may not.

I assume that your mother is in North Carolina. If so, then you can get new living wills and health care powers of attorney for free at www.nclifelinks.org. You can get a very simple free power of attorney at: http://www.ncga.state.nc.us/enactedlegislation/statutes/pdf/bychapter/chapter_32a.pdf

I also will draft a revocation of the old power of attorney (you only need it for financial care but I would make it clear that both are revoked) and new medical/financial powers of attorney/living wills for a reasonable fee. I can also draft a new will or trust.

If your mother is not in NC, then I would look for the applicable state forms if they have one. Many states do. These usually can be accessed for free at www.ilrg.com's forms archive for personal forms.

For a will, while it would be better to get legal counsel to make sure that it is done right, you can inexpensively get packages from Legal Zoom or www.nolo.com. A note of caution - I am not endorsing these or any other products. While the products may be adequate in and of themselves, they rely on your mother to input the information and it may be possible for her to mess things up if it is not done correctly. Wills are not all that expensive and I would encourage her to seek legal advice and have it done by an attorney,

A further note of caution - while the powers of attorney can be revoked, you can bet that if the two children who are the agents hold them, they are not going to be pleased by the revocation. While your mother can revoke the powers and create new ones, the children may pursue a guardianship action in the county/state where your mother resides. Although the children live several hours away, they may seek to prove that the new powers of attorney are of no effect because your mother is not mentally competent. All this has to be proven in court through evidence of her doctors and others that know her. I also don't know if there are sufficient assets to make this worthwhile for them to pursue. However, I want you and your mother to be aware of this possibility.

If your mother is interested in securing my services, please contact me at rachelforjustice@hotmail.com.

Read more
8/04/11, 10:32 am

Related Questions & Answers

More Elder Law questions and answers in North Carolina

Looking for something else?

Get Free Legal Advice

8787 active attorneys ready to answer your legal questions today.

Find a Legal Form

Browse and download our attorney-prepared and up-to-date legal forms from $4.99

Find a Form

Featured Attorneys

Anthony RoachLaw Office of Anthony A. RoachChatsworth, CA
Timothy McCormickLibris Solutions - Dispute Resolution ServicesSan Francisco, CA
Barry SteinDe Cardenas, Freixas, Stein & ZacharyMiami, FL
Find An Attorney

Are you an Attorney?

Earn additional revenue and grow your business. Join LawGuru Now