Q.  Years ago, when my mother and father created their powers of attorney, they each appointed the other as their first choice agent, and appointed me, their son, as first successor. Neither of my parents is now able to handle their own affairs, nor act as agent for the other. How do I step in as their successor? Their form Powers of Attorney do not give me any guidance.

A. Your question is a good one, as most basic powers of attorney do not provide guidance. The important point to note is that your authority to take over as their successor agent is not automatic. It requires affirmative action on your part to establish their incapacity.

My guess is that each of your parents probably signed a very basic power of attorney (“POA”) form, very likely the “California Uniform Statutory Form Power Of Attorney”, or something similar.  If so, the form only recites that if the first choice agent is “not willing or able to serve”, then the nomination passes to the designated successor. The absence of guidance as to how that is determined can lead to reluctance on the part of third parties to accept the successor’s authority to act, often just when the need is greatest.

That said, what banks and other third parties usually expect is that you present one or, preferably, two letters from each of your parents’ physicians reciting that each is unable to handle their own affairs, nor act as agent for the other, with a brief statement of  the reason, e.g. advanced dementia. With those letters in hand, you should be able to induce the banks to honor your authority as successor agent.

Looking back, it would have been helpful if your parents had each signed a formal resignation as agent for the other, when each realized that their own ability to handle financial affairs was waning. Then your authority to act would now be clear.  We actually advise clients who sign POA’s, or who accept appointments as agent for another, to consider this option from time to time, so as to make things easier for the designated successor.

If the banks or other third parties are unwilling to accept your authority, you may need to be more aggressive, perhaps pointing out that if you are forced to commence legal proceedings to confirm your authority, the bank may be liable for your attorney fees if the court rules in your favor.

In requesting that your parents’ physicians write letters, you may find that their doctors have their own concerns about the disclosure of your parents’ medical information that preparing such letters would entail. While this is sometimes a problem due to medical privacy laws, in practice it has been less of an obstacle, especially if their physicians feel that you are acting in your parents’ best interests.

If all else fails, you may need to engage an attorney to petition the Superior Court to seek an order affirming your authority as your parents’ successor agent, or to seek a formal order appointing you as their conservator. An appointment as conservator would override their powers of attorney and give you the authority that you seek to manage your parents’ affairs.