Legal Question in Family Law in California

The first issue is whether it is a durable power of attorney given when she was mentally competent. If not, the whole thing is invalid because an incompetent person cannot give a power of attorney, and a power of attorney does not continue in effect once a person becomes mentally incompetent unless it is a durable power of attorney. If it is a durable power of attorney given while competent and she is no longer competent, it expires upon the death of the attorney in fact (in this case husband) unless it provides for a successor attorney in fact by its own terms. It does not go to her children unless back at the time she gave the power and was competent, she provided for the children to be succesors. It cannot go to someone she choses now, because she is not competent to choose. If there is no successor named in the original document and she is unable to manage her own affairs, then someone would have to apply to to the Probate Dept. of the Superior Court to be named her conservator. If there is a dispute as to who should be the conservator, the court will make a choice for her.

It does not pass to the children.