Can my mom’s husband legally sign a Power of Attorney for her after she became incapacitated in the hospital?

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Can my mom’s husband legally sign a Power of Attorney for her after she became incapacitated in the hospital?

My mom is married and does not have a Will or Power of Attorney. She became sick and hospitalized in ICU on 01/15/2017. Her husband secretly paid for a Durable Power of Attorney on 01/18/2017, listed his name as the ‘agent’, took her ID, and got it notarized without her consent or signature. Within the Power of Attorney, it states he can ‘create or amend designations of beneficiaries’ and I believe this is his motive for getting the Power of Attorney because he is not listed as my mom’s beneficiary on a life insurance policy. While I understand he is her husband and by law he is obligated to make decisions and entitled to her assets, is what he did legal and is the Power of Attorney he has a binding document?

Asked on January 19, 2017 under Estate Planning, Indiana

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

No, it is NOT legal. A spouse has no power to create a power of attorney for his spouse; only each person has the power or authority to create a power of attorney for him/herself. If you what you allege is provable, the power of attorney is void--and potentially, he could even face charges for identity theft (for taking/using her ID--thus essentially claiming to be her) or for fraud (for misrepresenting his legal authority to those doing business with him under the POA).


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