Can a poa act as executor for a mentally incapacitated person named as executor
2 attorney answers
You truly need to talk to a probate or estate planning attorney immediately.
A power of attorney legal document (there are 2 types - medical and financial in Texas) ends at the moment a person dies. A poa can only do what the person that selected him/her can do so once the person dies the poa dies too.
An executor is totally different. It is a person chosen in a will by a person. They do not act until the will has been probated in front of a judge to officially open probate and then the judge has to approve the appointment. For example, if the executor had been convicted of a crime for theft then the estate had a lot of money then the person would not usually be allowed to serve as the executor.
Fran Brochstein has been a licensed Texas attorney for 30 years but she now only mediates. She no longer goes to court. She moved from Houston to TX Hill Country and mediates cases all over TX via Zoom due to Covid. She hopes to return in person mediations when Covid is over. She has reduced her mediation rates for 2021. Please understand that Fran's reply to your question in no way creates an attorney-client relationship. You are strongly encouraged to consult with an attorney in your county in person about your specific legal problem.
Q: My parent was named as executor and that family member is claiming to be executor because of that alleged poa. Correct?
A: Totally wrong. It is unacceptable that the person claiming to act as attorney-in-fact or agent under the power of attorney has failed to produce the actual document. But.
Even if they did produce a written power of attorney document, a fiduciary cannot, through a power of attorney, delegate their authority as executor, trustee, agent, etc...
NOTE: A fiduciary can hire sub-agents and expressly delegate authority pursuant to the terms of the trust or estate that gave them the original authority. But not through a power of attorney.
Consult with local counsel to clean up this mess.
This is not legal advice. I am not your lawyer. You are not my client. You cannot rely on my response to your question. My response to your question is probably worth exactly what you paid for it. You don't get to sue me for anything. If you'd like to sue me, well you have to hire me first.