What can I do if I don’t have power of attorney and my mom passes?

My mother is on her death bed with terminal cancer. She does not have a living Will, but I’m her only child. I went to have power or attorney papers drawn at the funeral home. She signed then to her best ability; it was motorized and witnessed. But when I tried to go to the bank with it they said I have to have them drawn up by and an attorney. So I called around and made arrangements. And she has gotten worse in the past 2 days. What are my options right now? I feel that she’s confused and by me bringing in a lawyer would be a waste of time because she’s not going to understand.

Asked on September 17, 2011 under Estate Planning, Virginia

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Actually, I think that you may be a little confused here. A power of attorney is only good for as long as the person signing it is alive. Once the "principal" passes the "agent" ceases to have any exercisable powers. At that time either a Will or state succession law will determine the administration of a deceased's assets.

What your mother should have done was to have a Will drafted and executed. It appears that she did not. If she did the named executor named would handle her affairs. Since this appears not to be the case, then your mother will die "intestate"; that means without a Will. Accordingly, the intestacy laws of the state in which she is domiciled as of the date of her death will control. In such a case the court will typically appoint a family member (sometimes a close family friend) as Personal Representative (the equivalent of an executor). The PR will then administer then her estate. Since you are an only child, you are probable the best one to apply for appointment.


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