Laurel, MD asked in Family Law and Elder Law for Maryland

Q: Can a Personal Representative act with the same powers as a Power of Attorney while the will-holder is still alive?

My mother has named me as her PR in her will. She has been deemed unable to make monetary decisions. We must sell her home to pay for assisted living but can't without a POA. We'd like to avoid the costs and time of applying for Guardianship. Will being her PR allow us to handle her affairs while she is still alive?

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1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Estate Planning Lawyer
  • Rockville, MD
  • Licensed in Maryland

A: NO. First of all, you are not her PR until a court appoints you to act as PR--which can only happen after your mother dies and you file the will to open her estate. A person named or nominated to act as PR in a will has no authority to do anything before the person dies. The PR only acts for the estate of a deceased person.

I am sorry for your circumstances, as a POA for both healthcare decisions and financial decisions should have been prepared and signed by your mother along with the will, as those two documents are always needed before the person dies--it is inevitable, as we all fail of cognitive function as we age. Unfortunately, just like it is too late to buy fire insurance after the house catches on fire, you can't make a healthcare or financial POA (or a will) after mental incompetence has set in. The only option is a guardianship. Yes, it is more expensive, but not unreasonably so, and there is no choice now. Good luck to you.

Cedulie Renee Laumann agrees with this answer

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