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Zoey, JD
Zoey, JD, Criminal Defense Lawyer
Category: US Law
Satisfied Customers: 26790
Experience:  Over 20 years of high volume criminal defense work,including all aspects of a case from arraignment to plea or trial.
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Can a durable power of attorney override the principal considered

Resolved Question:

Can a durable power of attorney override the principal considered compos mentis when the durable power of attorney believes in good faith such action is indeed in the best interests of said principal and does not involve the sale of any property nor is based on any financial interests whatsoever?
Submitted: 3 years ago.
Category: US Law
Expert:  UKSolicitorJA replied 3 years ago.
Hello,

Only a person who has compos mentis is able to grant a valid power of attorney to someone to act on their behalf, if the power of attorney states that it is durable or lasting even after the principal loses compos mentis, then the power of attorney will remain valid and the attorney appointed may act under it.

May I help further?
Customer: replied 3 years ago.

My question was never answered. I am, for years now, which my mother set up ,her DURABLE, not general, not springing but DURABLE power of attorney, in Virginia, USA. Now that my original question is absolutely crystal clear, can I override my mother (principal) in a decision to have my sister removed from my mother's house. She is abusing my mother, who is now forgetful, but still considered compos mentis, taking monies from her and not taking care of my mother who is no 80 and nearing completing a diagnosis of senile. My mother is unwilling to get an 30 day legally required, eviction notice for my sister to be removed from her house. AS I am my mother's ongoing durable power of attorney, can I have my sister evicted against my mother's wishes? If you are incapable of answering this question, I want a refund of the money I have paid as so far it has been a waste of time and money on my part. Thank you.

Expert:  Nicola-mod replied 3 years ago.
Hello,

I apologise for the inconvenience, but this question was posted in the wrong category. I have now moved it to US law and hopefully one of our Experts there will be able to help.

Thank you,
Nicola
Expert:  Zoey, JD replied 3 years ago.
Hello,

My name is ***** ***** I am a US lawyer.

What's important here is when the power of attorney takes effect. If it is springing, then it only takes effect after the principal is incapacitated. If it is not springing, then it took effect when it was granted to you.

That would give you the discretion to override the principal and have your sister removed from the household. BUT, as your mother is compos mentis, to block it, all she would have to do is to cancel your power of attorney.
Customer: replied 3 years ago.

My mother cannot distinguish the difference between a tv remote control and a telephone. She is undergoing a mental evaluation at the end of which, she will undoubtedly be considered to have senile dementia but she does have these moments of clarity even if her facts are very confused. What do I need to verify legally she is now not compos mentis so I an act on her behalf? She is unsafe in the current environment and I am 3,700 miles away living in Glasgow, Scotland.

Expert:  Zoey, JD replied 3 years ago.
What you need is to wait for the diagnosis. Once she's got senile dementia, you can at and override her.

Meanwhile, as you're very far away and you feel she is at risk, contact Adult Protective Services and let them investigate what's going on in the household. Here's APS for Virginia
Zoey, JD, Criminal Defense Lawyer
Category: US Law
Satisfied Customers: 26790
Experience: Over 20 years of high volume criminal defense work,including all aspects of a case from arraignment to plea or trial.
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