My mother is 93, is functionally blind, and has dementia. My brother has DPOA for her, and lives 1000 miles away.
On Sunday, she had to sign two forms to file her taxes (the authorizations for the CPA to e-file, fed and state), and we did get that done, with difficulty. It looks like what it is, a signature by a blind person with failing motor control.
Later I emailed my brother to let him know the taxes had been filed, but that next year we’ll need to get him involved with signing as DPOA. I specifically said that I’d continue to do the rest of the work, gathering documents, interfacing with the CPA. I even told him I’d take care of finding out what needs to be done for the signature, and would obtain forms and get them to him. The only thing I’d need from him would be two signatures. All can be handled by fax/email.
He emailed back telling me not to make such a big deal of this, “I’ve seen you demonstrate to me before that she struggles to sign, OK we all get it, so help her out.” " Guide her hand if you have to." “You won’t go to jail!!!” “People help the old folks sign stuff every day down here in the ‘valley of the old.’” “PS - It’s only once a year – it won’t kill you!”
I haven’t responded, but forwarded his email to my poor other brother, to see if he has any insight on this resistance to doing the ONE – SMALL – job he has in relation to our mother. And Mom’s deteriorating at a rate which makes me think this may all be moot by next tax season anyway. But leaving aside the less-than-ideal relationship with my brother, my question for the CC hivemind is this:
Is it legal for one person to “sign” for another, in the sense of guiding their hand while the incapacitated person holds the pen? Citations appreciated.
If you have her permission, you may sign for her. Simply put a “/” with your initials next to them after her signature, which indicates that you are not forging her name but are signing on her behalf.
I think you’re likely to have a significantly bigger problem working with your brother after mom dies if he’s so unwilling to cooperate now. Hope that isn’t the case but it sounds challenging. Best of luck!
The one thing I would be concerned about in this situation is whether your mom has sufficient capacity to give you (or anyone) permission to do anything. If she is audited (unlikely) and she has to answer questions about her taxes, is she at the stage when it would be obvious that she doesn’t know what is going on? If she is, then the auditor might question the signature, too.
If someone was actually not considered of sufficiently legally sound mind when signing the document as someone suffering from dementia is likely to be considered, the signature isn’t likely to be considered valid if the auditor/judge finds this to be the case.
The brother is wrong. This is exactly the kind of situation that a durable power of attorney is supposed to address. @cobrat is right that the signature of an obviously incompetent person is not valid, while the signature under POA of the agent she appointed while competent is valid.
Why does someone who lives 1,000 miles away hold the POA? That’s a mistake. If he isn’t comfortable exercising it, and if the OP is named as an alternate, he should resign and transfer the POA to her.
But if she has a paid preparer (I assume the CPA mentioned upthread), presumably that gives her some cover in case of an audit? Does/should the CPA have a POA to sign her returns?
No. Too many potential conflict of interest issues here…and I can see that even as a non-attorney.
Just confirmed it with a CPA friend. She basically stated any CPA who does this potentially risks losing his/her CPA license and possible additional serious legal penalties for doing so including possibly prison time.
Unsure of legal technicalities re:signing, but in my experience most folks name a primary poa, then an alternate or two if the first or second designee is unable or unwilling to serve. Might be worth reviewing how her documents were drafted.
If your mother continues to decline, needing a poa is likely an inevitability. Perhaps your brother would be willing to allow the next poa to step up. He doesn’t seem to have “the right stuff” for the role.
Wow, he is impressive! Listed no doubt in the Passive Aggression Hall of Fame. I won’t fulfill my responsibilities, and I will ridicule your efforts to overcome the hurdles I construct. Lacking other data, I’ll assume he is a sad, bitter old man.
As to the legal issue, I don’t know. I think you want to make sure you stay clearly on the right side of the law. And he knows that about you and will press you do step into the gray area. It doesn’t matter how unlikely it is that she would get audited or that her signature would be inspected, you want to make sure what you are doing is allowed, and you want to know where that is defined, right? Only you can decide how far to go. Would he be willing to resign as POA? Would you be willing to have her declared incompetent and petition for conservancy/guardianship?
My take on this is practical rather than legalistic.
If you’re simply asking about the tax return, the issue is whether something is wrong with it, or possibly whether the payments or refunds are properly being made or received. As long as this is all ok (which she wouldn’t know anyway, right?) I don’t think there is much risk regardless of who signs or how.
If you begin to consider questions about signing withdrawal slips from her bank account, or similar instances, then my position would be different.
So true. Or sometimes the parent chooses a “preferred” kid. My husband had to beg his dad to give POA to SIL instead of “his only son.” SIL lived in the same town - not several times zones away.
My parents have given POA to my older brother. Time will tell whether and how he chooses to step up. So far, he hasn’t done much except when I’ve pushed him.
In a similar circumstance with family…found it easiest to disengage from the unproductive debate prior to actually needing a signature, at which point the CPA sent the documents to the person with the POA, along with instructions where to sign, and pre-addressed, pre-stamped return envelopes. At that point, the person with the POA had the option to sign the documents and return them to the CPA or not… No discussion. No agita. No need to spend the next twelve months worrying about it. (But I agree with the above post that said that it sounds like a contentious relationship. If your brother is willing to pass along the POA to you, it might be easier.)
It was set up this way because of family history: When my grandparents began to fail, my uncle persuaded them to live next door to him, and he did take care of them. He also managed to steal the entire estate by paying himself “fees” unbeknownst to my dad of course. So when it was time to move my parents, and living near me seemed best to everyone, my brother believed that I was positioning myself to repeat my uncle’s move. Therefore, I have no signing authority on anything, because my brother insisted on it. Fine, but on those very rare occasions when he needs to perform his POA duties, he doesn’t want to. And he will never ever ever hand over POA to me, because he still doesn’t trust me entirely. (Mom can’t hand it over, she’s way too far into Incompetent Land.)
@janjmom I really love the idea of just having the CPA mail the docs to him.
@dadx There’s no banking involved, and I do finally have signing privileges on the checking account (after a huge blowup with him about it last year). Now it’s just the taxes and it’s a pretty straightforward return, nothing which would attract unusual attention I wouldn’t think. I admit part of this is a bad attitude on my part – I’ve put in thousands and thousands of hours caring for my parents, and he refuses to do this one little task which would take 5 minutes. It just grinds me.
In consultation with my other brother, I’ve decided just to not respond to him. He’ll probably visit sometime during the coming 12 months and we’ll talk about it then. I think he won’t feel quite so free to bully me in front of my husband, my other brother/SIL, and Mom. What I’m asking is not unreasonable.
Have CPA mail 2017 documents EARLY, so plan B can be considered if brother remains uncooperative and he can’t say he didn’t have enough time. It’s so hard having uncooperative family.
Wow, what an inappropriate response from your brother. The IRS has separate forms for POA. My POA papers were useless for my folks and I had to sign different forms and represented my parents in a lot of dialogues with the IRS. You can act as the POA for tax purposes and your brother doesn’t need to be involved at all.
