OP can’t be the POA based on mom’s signature if mom is incompetent.
I’ve had mentally competent legally blind clients sign the efile documents, and they look like a blind person signed them. This is not a problem. (We go over the returns at delivery, so no issue of being able to read them.)
For clients who are legally incompetent but aware, we do everything in duplicate - one copy to the incompetent person, one to the DPOA. The copy to the DPOA is the one that counts; the other is a courtesy.
When my father died–having previously dropped everything to go there and help her take care of him-- I helped my mother arrange her finances, get a new will drawn up, and so forth. I continue to help her with her financial stuff. My H does her taxes, and his firm manages her investments. I am now on her checking account as an owner, a cosignator on her safe deposit box, and so forth.
In order to allay any sibling rivalry, I encouraged my mother to give POA to both my sibling and myself for both health and finances. She felt more comfortable with a springing POA than a DPOA. I also encouraged her to name both of us as executors. I know that most attorneys prefer a DPOA and one person, but that would not have worked well for us.
I know that my sibling is highly unlikely to want to actively participate in these responsibilities–there was no help at all in settling the estate when my father died–but I also knew that she would be mightily offended and upset it I were the sole executor and person with POA.
I am the one whom my mother actually depends on to do things, but his way my sib’s feelings are preserved.
I wish we had that kind of trust between us, Consolation. My other brother and I certainly do, but the POA brother and I have had a difficult relationship since childhood. But one of my big goals during this caring-for-the-parents season of our lives has been to do everything possible to keep the family from blowing apart, which would only make things much harder and worse for everyone including me. I’ve had to bite my tongue more than once.
Thanks, everyone, for your input and thoughts.
If mom is incompetent, can you file to have her formally declared incompetent and then file for guardianship over person and property? If a judge balks, you can provide the correspondence from your brother as evidence that he derelict in his duties.
In our family…actually two siblings had POA…one who lived in the same town…and one who was six hours away. The one innthe same town did most of the signing of things. The one far away did some…but not much.
It was set up that way in case the in town person was away…or something happened to them.
The issue you have now is parent can’t request a change due to competency.
I wonder if the POA can make a request to have someone added?
LasMa’s choice is to make things work despite her brothers passive aggressive behavior, or blow up the family seeking a ruling of incompetence and filing for guardianship. Which the brother would probably fight.
A POA cannot designate a successor POA if that wasn’t in the original designation (if the Mom didn’t have the documents written such that Middle Brother was POA, but if he couldn’t serve Older Brother or LasMa could step in.)
That train has left the station.
Hoping the POA changes or become more reasonable or starts playing fair is pointless, he’s too old and set in his family role to change now. He’s an obstacle, and the others have to deal with that. No sense wasting any emotional energy over it.
I like the idea of just sending him documents and letting him deal with the CPA. If Mom’s taxes don’t get filed, who really cares? She’s not supporting the operation of the national infrastructure at this point.
It is expensive and time consuming to go to court. Having CPA send docs to brother next year is the easiest solution.
I, too, like the idea of the CPA sending the POA the forms, takes the blame away from LasMa, it’s not her choice, it’s the CPA as a representative with an obligation to do things correctly, who decides to provide the forms to the POA. No talking, no back and forth, just have the CPA be the one to mail stuff to the brother The only issue with that, that I see, is the e-file forms show the income and tax amount, so they have to be done once the tax return is complete and most tax professionals are not done until fairly close to the time taxes are due. Not a lot of extra time for any hassles.
Rethinking this and completely agree with those who said if he’s got the power of attorney and is responsible for the financial matters then the form should be sent to him. This is it your responsibility you’ve done more than your share to get the information to the CPA. The CPA should send it to your brother and if there’s a late fee attached to the filing or if he has to pay out anybody’s whatever that will be his responsibility.
@LasMa might suggest this to her brother – or better yet find someone else to suggest it:
Holding the POA for his incompetent mother makes him a fiduciary. If he causes his mother to suffer losses by exercising (or not exercising) the POA incompetently or unreasonably, his mother’s estate may have a claim against him for damages when she dies. The other estate beneficiaries – his siblings-- might be able to pursue that claim against him.
On the other hand, if he turns the POA over to her – assuming that can happen under the document as it exists – then he’s the one in a position to sue (or to threaten suit) if he doesn’t like how she exercises or refrains from exercising the POA.
The question is was your mother competent to sign the tax return on the day she signed it. If yes, no problem. There can be 100 POA’s out there but they don’t revoke the principal’s ability to sign for herself at any time. POAs are usually used for times when the principal is unable to sign for herself - out of town or ill, unable to get to the signing. It can be for a one-time thing (I did a closing for my sister who was OOT) or, as in this case, durable. If the mother is no longer competent, only a court can issue guardianship papers. The brother’s POA is still good unless the court order cancels it.
If the mother is still competent, she can agree to the guardianship and then it is a simple process. If not, the court must do an investigation (sometimes an easy process, sometimes more difficult).
The OP’s brother, as POA, could have filed the return and authorized the accountant to file electronically. Not a big deal. A bank, a real estate transaction, medical paperwork may not be so easy and whoever has to accept the documentation/signature may not be willing to do so if the mother appear incompetent to understand the transaction.
*typo in #28 - should say “This isn’t your responsibility” (not “this is it your responsibility”). and also “pay out any monies” not “pay out anybodies”. I am giving up on dictating responses!
Sounds like from what has been described, the mom sadly won’t likely pass a competency eval.
Mom is definitely not competent, though we haven’t had her declared as such in a court. But no reasonable person talking to her would conclude she is. I’m not willing to go to the trouble and expense of having her declared legally incompetent, and since I’m not POA I suspect I wouldn’t have standing anyway, unless I wanted to also fight my brother in court about his responsibilities as POA. It’s just two freakin signatures I want out of him.
The way it’s set up is that Bad Brother (BB) is primary, Good Brother (GB) is secondary, and I’m tertiary. (It’s too late for Mom to execute another POA.) GB would absolutely be willing to sign the tax forms if he were POA – he’s always been super supportive – but BB would have to relinquish his POA powers in order for that to happen, and he’ll never do that. Because of family dynamics I won’t bore you with, BB feels a need to “punish” me and, to a lesser extent, GB. So he’s sitting in the cat bird’s seat, and there’s not a damn thing we can do about it except try to reason with him or start an ugly and expensive court battle.
I’m not saying you should go through the bother, but just so you know, you probably have standing to bring a guardianship action.
Ugh. OK.
And unfortunately, if your brother starts explicitly neglecting his POA duties to the point of missing the IRS filing deadlines and thus, incurring increased costs for the estate, you and the other brother may need to take him to court to claw back the losses he incurred and to possibly replace him due to his own negligence.
Having a POA is not that same as guardianship, and his having it doesn’t change your standing to be appointed guardian. Many non-family members are POA (lawyers, business managers) but almost anyone can start a guardianship case. Doesn’t mean that person will be appointed the guardian, but anyone can point out that this person NEEDS a guardian. Often the case is started by a nursing home or hospital, by the state, by a neighbor pointing it out.
The POA brother doesn’t have any more power than that granted to him through the POA - probably the ability to sign when needed.
My friend is going through this now. MIL lives next door, so husband has always taken care of his mother. MIL broke her hip a few weeks ago, and the sister/nephews have done nothing to help but they feel entitled to bitch about everything. I told friend to just tell the sister that husband is in charge and THIS is how we are going to do it. Keep a record of all fees and costs paid, and those will be deducted from the estate before it is split. Hire whatever help he needs and charge it to the estate.
It sounds like your mother needs a guardian, not just a POA. You could probably get away with just a POA if your BB was in the same town and willing to do the work, sign the forms, transfer the accounts.
Make an early February 2018 appointment with the accountant to do,the 2017 taxes. Then have them sent by the accountant to the POA. Get yourself out of,the middle,of,this.
Sometimes POA (and positions like estate executor) is given to the male offspring because they are… male. That is how it was in my family until a serious family situation opened my dad’s eyes to which of his kids is most capable in these areas (me, female). He made some changes then. I know that can’t happen for OP, but I bet it is common. 
@intparent - yup. Mr. B had to work hard to convince his dad that the daughter living in the same town was a better choice for a POA.