Can a dementia patient revoke a POA without a valid reason that can be proven?
I recently saw a comment that said "he could revoke POA in a snit of anger." If a dementia patient cannot assign POA after a certain point in their disease, it makes sense to me that they cannot revoke a POA after a certain point in their disease.
DoeEyes, this may sound like a naive question, but have you tried having a conversation with the quasi-stepson about arrangements for your father? Is he a person you can talk to?
The thing is, what he and his mother have done seems at first sight a perfectly practical way of helping your father. You're - to me - an unimaginable distance away from your father, the son is right there, it's much easier and quicker for him to handle the day-to-day stuff; he's actually doing your family a favour.
Where it seems to have gone wrong is at the KY attorney's office, where quite possibly it was the attorney who recommended an unnecessary belt-and-braces approach to getting things formalised, which has had the effect of creating a legal puzzle that should contribute nicely to both attorneys' golf club subscriptions. Does this blanket "all previous POA blah blah" pro forma also revoke healthcare proxy appointments and directives? Good question. Should take up hours of chargeable time, heh-heh-heh...
More seriously, the attorney doesn't have to have been behaving in this self-interested way: it's equally possible that they just have a standard format for changing POAs and he went merrily ahead with it, assuming you were out of the picture.
It's a shame nobody thought to pick up the phone and discuss this with you. Still.
So if you can clarify with the "stepson" and with your father what the situation is, and agree what your father would like it to be AND what you are satisfied with, you could save everyone a lot of money and trouble. Any chance of doing that?
Q: My father was sent to live permanently, in a V.A. nursing home in KY because he had become legally blind and was exhibiting violent and delusional signs of suspected dementia/alzheimers.
Upon arrival he was tested and was classified as moderately mentally impaired.
30 days after my 86 y.o. dad was admitted, my dad's 84 y.o. "girlfriends" son took my dad to an attorney so my dad could designate him poa to pay his household bills only. The attorneys office had him sign a paper that stated any and all previous poa's that were in effect prior to that date were now void.
My father had a will, general poa, durable POA for Healthcare and an end of life declaration stating his wishes for/against life support if ever needed and designated me to execute those decisions if he can no longer do it himself. ( The girlfriends son lives an hour away from my dad in KY, where I live in Texas, so it makes getting daddy's bills paid in a more timely manner so they are always paid on time for the "son" to do this). My Q: is...#1) having already being deemed moderately impaired from the dementia, does anyone stand a chance on taking the legality of this document to court to get it ( the sons poa) overturned???
Q: #2) I believe that the durable Healthcare and his end of life declaration that he had drawn up designating me as his POA in those matters should still be in effect....right??
I spoke to the attorney who prepared daddy's original documents and said he found it hard to believe that any state would have such a non specific poa nullification document and since that paper was being signed came about only because he was changing his POA for paying his household bills only...and had nothing to do with his health care poa or the durable Healthcare poa, the original document ( from '91), that I am still my Daddys legal poa for his Healthcare if/when he needs me to fill that roll.....Q: #3) Is this true???
Is there someone else with a legal background that can confirm or deny what the original attorney told me this evening???
A belated thank you to all who responded. Joanne's answer addressed the issue about which I was concerned. I have and have had Durable POA (financial and medical rolled into one) for some time but was concerned that a dementia patient could revoke such power in an angry moment since as we all know, with some type of dementia, those angry moments can be frequent and are usually directed at the primary caregiver. I think the lawyer's advice is on point - just wait and they will forget or else an attorney would find them incompetent to make such a decision, which was my point. If they cannot assign a POA with dementia, how can they revoke a POA with dementia? Thank you all.
Rainmom....Durable POA simply means the person who has the POA has the authority to handle all the durable assets...as in money, house, car, furniture....all assets that are owned by the person you have the POA for. The other one is a Medical POA and that is for making medical decisions if they cannot. Other types of POA are as GardenArtist mentions....just very specific to a certain situation or activity or temporary period of time...like while someone is recuperating from an accident, or unconscious after surgery, or otherwise unable to take care of their affairs.... A Durable one is considered long term....and covers more or less the rest of the person's life, depending on their health issues or age etc. This is my understanding from the questions I asked my parents' attorney at the time I signed to accept being a POA for them.
Rain, the only time I've used my authority was when my father was going to be intubated and wouldn't be able to communicate. He clearly lacked any elements of dementia, but wouldn't be able to make decisions for himself, medical or otherwise.
The hospital asked for whatever authority I had to act, I provided copies of both the Living Will and the DPOA. At the time, there was such a higher level of anxiety on the medical issues that I don't even recall asking them which document they would rely on.
As I recall though, the activating basis of the DPOA was that my father be unable to make decisions for himself, which was going to be the case once the intubation was completed and he was chemically induced into a coma.
I think most of the emphasis is on lack of ability to make cogent decisions because of dementia, but our situation is one in which a DPOA was mandatory because of the advanced state of deconditioning and ancillary factors that necessitated induction into a comatose state.
I think another use for a DPOA would be if someone was in an accident and medically or mentally unable to make any decisions, as to finances or care.
I do think you're right, that used properly, it can bypass the guardianship route, which is a much more expensive and controlled route.
As to the question whether a POA is voided when the maker becomes incompetent, I don't believe that's the case, but is rather ONE of the purposes of creating a DPOA. I think the maker's ability to make decisions would be considered limited, if still existent, but that wouldn't void the DPOA, only the maker's authority to make changes....if all that makes sense. It does get murky, doesn't it?
I've also worked for attorneys who've drafted limited, issue specific DPOAs, such as when my sister bought her house. The owners wanted to move out of state and didn't want to remain instate until the closing. So their attorney drafted a specific, Limited DPOA so a friend could execute closing documents for them.
I have to admit I was starting to get confused! I have DPOA both financial and medical - and it seem to be agreed that a DPOA is well, more durable than a regular POA. But in regards to this whole discussion - isn't the whole point of a POA is that someone can act legally on someone behalf when they become incompetent? What else would you need or use a POA for if you were able to competently take care of things yourself. If a person is incompetent and that voided the POA, then who's in charge? You may answer guardianship but that can take many months and life and bills go on. Partially isn't a POA something that can help bypass the guardian route as long as the recipient is a willing one I.e. your not having to force them into AL or wherever? My understanding is a POA or even a DPOA can be revoked/changed at any time as long as the person is deemed competent. If this is in question the whole two letters by doctors come into play and a judge determines the outcome. If incompetent the POA stands if competent, it's a whole new ball game.
ThereIsNoTry ....Yes I had (on Dad..) and have on Mom both the Durable POA and the Medical POA. I am also the trustee of two trusts....my Mom's living trust and a Charitable Remainder Trust that will pay out to the Charity in another year. And revoking a POA.....or it becoming null and void.... my understanding from working through the lawyer and with my Dad's attempts to revoke....is that the person that the POA is for...in this case, my parents.... can only revoke it BEFORE they have been declared incompetent. It actually becomes null and void only upon their death. It goes into effect at the moment it is determined they are not able to handle either financial affairs or medical affairs. But even then, at last with dementia, I was instructed that I was to 'take over' only the parts that either parent could not reasonably do on their own. So I was specifically instructed that my parents had the rights to make decisions that were NOT financial or medical, and that they could be included in any of those decisions even, and given choices or ideas to see what they preferred, but then, in the end, I was the decision maker. So Mom, just as an example, had her own credit cards and went shopping and bought things and I paid the bills. I never told her she could not do that. We had an issue over her agreement to purchase a used refrigerator once....where I could then see, that bigger decisions should no longer be allowed because she was no longer able to see or listen to the bigger picture in terms of good use of money. She wanted a second one. It was $325. She agreed to buy without telling me. BUT we paid another $150 to move fridges around and get the new one working right (icemaker issues) and then, subsequently, we had to put another nearly $200 into repairs, because she was hoarding food and over filling the icemaker storage area with food pkgs! SO...after that, I said she should call me before anything that was going to cost over $100 so I could check the totals in the checkbooks! Worked fine. She had no executive level thinking left. I also ordered another neuro psych eval at that time to see if her Alzheimer's was getting worse, and as a result, insisted on caregivers part time in the home, and ordered another video camera, so I could see what she was doing in the half of the home she spent most of her time in. Anyhow...the POA didn't become null and void when they became incompetent....just their ability to change it became null and void. My Mom is the bigger problem, and especially over the decision to leave her home and go to assisted living. She kept insinuating that I had misused their money because she said, " Your father told me that we would have plenty of money to last us for the rest of our lives, living in our house.....so where did it all go???" Lawyer has to try to explain that Dad had a great plan, and saved a lot of money, but his 'the rest of our lives' didn't count on living to 93 and 90 and getting dementia and alzheimers and having to live in a facility that cost us $75,000 for the first year until enough was spent down for Dad to qualify for Medicaid. On first discussions, Mom understood, but as she was getting worse, we couldn't even have a simple explanation. All the lawyer could tell her was that he was aware of how the money was being spent by me, and he knew I was doing everything legally but things were expensive and we were going to run out of money....Finally he actually had to give her a deadline to pick an AL place, and then a deadline to move out.....because she was so resistant. She did always have the choice to move in with one of our daughters and her family, and even after choosing AL, she still has that choice left. So decisions were arranged to be Mom's decisions because of her need to feel in control. But the lawyer did say, if Mom absolutely refused, we would have to get the two letters and perhaps even just go to court for guardianship. So far...it's been OK. The only other way the POA can be 'revoked'....is my part of it. I can back out of my responsibility to BE the POA at any time, and ask the lawyer to appoint another. For my Mom, one of our daughters is listed as a secondary, so he would then ask her first to take over. If she refused, he would have to put in a public fiduciary who would act on Mom's behalf, pay the bills, make the medical decisions etc. That, of course, would take all controls or discussions away from family members who know Mom and her likes, dislikes etc, so we would want to avoid that as much as possible.
my fault! mea culpa! I'm the one that asked the personal question - if I need to not do it or send a msg or something different, call me out but I want to ask another one now; Joannes, so sorry to hear now about your mom but now can she have surgery?
oh, I should mention, I don't think anyone can revoke a POA if not competent, my personal belief, based mostly on other people's experiences that a POA becomes null and void if someone is incompetent. Probably a good reason to avoid the question of competency altogether since that invokes issues to involve courts, emotions, and money.
joannes, it sounds as if you are talking about a DPOA, which is something designed to be used that way. I think when ppl sign a POA without the added stipulations you mention, it is different. You are quite wonderful to carefully share your legal and personal experiences. It helps a great deal. Will keep reading....
This forum has been a wonderful resource and support. I've not asked too many questions for myself, but have shared my experiences as non live in caretaker for my parents as I thought something would help another. Thus it is with my comments about what the POA is all about. But, I am not the one who asked the initial question. I think someone just asked me a personal question and we got off track talking about what happened with my Dad!!
debdaughter.....what broke was the acetabulum, which is the actual socket, in the pelvis, that the hip bone fits into. No matter what, that is a non surgical repair, since, if the hip is not broken, one cannot really get into it to fix anything. So it's pain meds, rehab and a lot of work to get to walking again. Difficult thing with dementia, in that situation, is that pain meds frequently cause big set backs with the dementias. The pain caused Dad such agitation, that meds either had him totally zonked out, or he was going nuts with either pain or agitation. He was not able to be eating, drinking sleeping......and could not take part in any in hospital part of PT for rehab. So after 5 days of that, they said he would not be eligible for rehab at all. Rehab would have taken 3-5 months of someone with commitment. Dementia pts do not understand enough of the instructions to do the follow through and work with the plan. Dad really dealt with his anxiety from his dementia, by walking. He was fortunate to live in a facility that had 5 cottages, all behind a secured fence, but with lots of walking paths and rest areas between the cottages. All cottages looked the same inside, and all were unlocked....so the residents could wander around the property and never feel 'locked in'. If they sat at a table to eat in the 'wrong' cottage, the other one would be informed, and he could eat in the 'wrong one'...or do activities in the 'wrong one'. Staff assigned were responsible for checking q 15 minutes as to where their assigned residents were. At any rate....the prognosis for my Dad would have been being w/c bound from there on out...IF he chose to eat and drink when pain was controlled. Knowing his needs and wishes, we opted for hospice placement, with pain control and offers of food and drink. But, he wanted to leave. He never even attempted to suck on the mouth cleaning swabs. He would have been absolutely miserable in a wheelchair and would have needed much more medication to keep him in a non agitated state. He was so unhappy when he even had to leave his home, that I just could NOT let him end his life in a wheel chair. And the worst part of what happened is that it really didn't have to. If everyone understood dementia better, he could have lasted much longer. He was on 3 different meds that lowered b/p and it was summer in Tucson, AZ, so he was chronically dehydrated. He hated water, but his facility always offered water, and no matter how I talked or who I talked to....they just could not remember to offer him ginger ale or iced tea or apple juice....so he didn't drink enough. He had 3 episodes of dizziness and falling in 6 months...which I think totally due to them not pushing fluids on him that they knew he would like and would drink. Also, upset that the covering MDs, had him on 3 meds that each by themselves caused dizziness and didn't pay attention to that, especially after a couple falls. So the third fall, did him in. He was getting worse....eating less, losing weight bit by bit....and at 93, it was just a matter of time. He is in heaven now....and his mind is clear.....He's made a couple visits back to us that were interesting and my Mom has had numerous dreams where he comes and sits with her and talks to her. Not sure what all that means, but it's comforting anyhow. And now...just 3.5 months later, it's my Mom who has fallen and had the fracture of the upper femur. I am so stressed about it all....I cannot think straight, sleep well or eat.... but I keep trying to keep going....
My Dad was a real 'brain' man. He had a BS in Electrical Engineering, and a Masters in Mathematics and Computer Programming. So in the early 2000's, he noticed he was having problems remembering things and losing things. He had already been seeing a neurologist for vascular headaches, and he asked his doctor about these issues he was noticing about his memory. The neurologist suggested testing, and apparently my Dad agreed, and via the testing, he was given a diagnosis of Mild Cognitive Impairment. The neurologist explained that it could be early dementia symptoms. At some point, down the road, the diagnosis was confirmed by more testing and the neurologist started my Dad on Aricept to help prolong his memory...in other words, no cure, just keep it from progressing so fast. I had no knowledge of all this until we moved out of Tucson in 2010, and my parents started traveling to visit us. I noticed the Aricept prescription, which I knew to be for Alzheimer's Disease. I asked Mom....and typical of her, she knew nothing about his meds.....so I asked him. He relayed the above information. At that time, I started watching him closer, and our RN daughter who still lived in Tucson then, made it a point to come by, visit, assess, invite the parents to their place and involve my Dad teaching math to the home schooled great grandkids, so she could have a 'closer look' at him. She also noticed changes. Dad was very private about his meds, health care etc....very much a man who was 'in charge' of his money, home, needs, himself etc..... New England personality totally. So he wasn't going to admit he needed anything! He had a couple small fender bender accidents and other things happening, whereby, as is typically....it wasn't his fault...it was someone else who didn't do what they should have....so eventually, my daughter and I started offering to take him to app'ts.....because he couldn't remember exactly what any doctor told him...so we said we would just be there to be another person who would help him remember. I taught him to write down things on a paper that he wanted to remember to talk to a doctor about...and then take the paper, cause he was always forgetting what he wanted to discuss...what his symptoms were...no matter who the dr was. So we learned more from the neurologist. In 2011, I got a call one day from Mom saying that the electric was going to be shut off because the bill was two months over due.....Dad said he paid it. I offered to help trouble shoot since I could get on line and he couldn't......and found out he had not.... anyhow....that incident is what led to him being called in by the attorney for a 'legal check up'....after I called the lawyer. The lawyer asked a few questions, and then suggested to my Dad that perhaps with missing bills, along with the other stuff, it was time to have me take over the bills. That is how it all happened. He progressed quickly after that, and had to be placed in Memory Care in January of 2013. He died this past August, after a fall that caused a fracture in his hip socket.
I went through that with my dad whose dementia turned vindictive and paranoiac. I asked a lawyer what my options were if he revoked the POA, and was it possible even in a demented state. He said yes, that the law allows for a "moment of lucidity" in which he could still act to revoke it or any other legal documents.
My dad was in and out of "lucidity" and with doctors, lawyers, other neighbors He would tell them I was his daughter, but with me he would either pretend he didn't recognize me or really didn't recognize me. My feeling was he was deliberately trying to hurt me, because I wouldn't do what he wanted (quit my job and move in to take care of him, entertain him etc full time).
The lawyer told me my only option was to hope he didn't contact the lawyer who drew up the POA or to take action by getting a guardianship. He said in a hearing, a lawyer would represent my father's wishes, and even if a guardianship was granted, that my father would have a say in who his guardian would be. He was so spiteful and angry I think he would have insisted on someone other than me, if for no other reason than I was trying to say he was out of his mind ( which was a lifelong fear, and in fact came to pass).
That was in NY where he lived. I managed to get him back to where I live in Louisiana, and checked on getting a guardianship here and got the same answer. Louisiana is under Napoleonic Code, so if it is the same in NY & LA my guess is that it is equivalently difficult in all states to declare someone incompetent. And it should be very difficult to declare someone incompetent or we end up in a nightmare society where anyone can be deemed incompetent by greedy or selfish family.
It makes it agonizing for honest people who are trying to do the right thing for parents or relatives who are unable to cope gracefully with the indignities of old age.
My heart goes out to you. I have been there and agonized through making decisions where there was simply no good solution. I had to choose the least worst option, and it takes a heavy emotional, mental and physical toll.
There is no help for caretakers. There is no economic help unless you live with them and can get head of household status. There is no legal help, all of the laws are for the protection of the elderly person, none for the protection of the family caretaker from an abusive elder. There is no emotional help--what can a counselor tell you to help on a daily basis--get away? Take care of yourself? How do you do that? You still have to go back to the demented one and cope with the verbal, abuse, threats, accusations, paranoia, yelling, demands for constant attention, complaints, and lack of sleep. The dread becomes overwhelming and the only relief is knowing it can't last forever. But that is of small comfort when you are in the middle of it.
The advice I got from this site helped me feel less alone, so I hope it is of comfort to you too..
The POAs I had for my Dad and currently do have for my Mom, are in effect until they die. It is a procedure put in place BEFORE a person is unable to handle their own affairs. My understanding of it from their attorney is that I take over what they are not able to do....so when my Dad was no longer able to remember to pay his bills on time, I started to do it, by invoking the POA that he had already signed. This was done by calling me in and having me sign the next part of that POA, saying that I was accepting the role as the person my Dad named to take over for him and that my Mom had named to take over for her. I then assumed their bills and my Dad's medical decisions. However, my Mom was still capable of making decisions...just not capable of taking on the bill paying....so she continued to make decisions as she was able. After a couple years, she was diagnosed with early Alzheimer's and I started to assume more control over her medical decisions. Even now, that we've pushed for her to agree to move to AL and we have her house on the market, after my Dad's passing.....I still discuss with her the choices...as one would with a child. I give her acceptable choices, so she has some control. But the point of having the POA on anyone is so that someone else can handle their affairs when they can no longer handle them. It can only be revoked BEFORE it's put into effect....since before it's put into effect, the person doesn't need the help....whether they are incompetent or have medical issues when they DO need the help. A POA cannot be put into effect AFTER a person is incompetent to know what they are doing. So if it's not done ahead of time, the only next thing to do is to go to court and get guardianship of the person who is needing help. In the case of my Dad and his dementia....he knew he had dementia diagnosed for about 8 years before it affected him as far as his abilities to handle his finances and medical decisions. He had instituted the POA for finances and medical while he was still competent to do so, as had my Mom. He had hired an elder care attorney and created a trust, and their wills and all their Health Care Directives at that time, while still competent because he knew he would become incompetent at some time. He knew that my Mom had her own inabilities to make decisions or handle money, so rather than name her as his POA and he her POA, he named me, as the only child left. Perhaps that clarifies some of what I said in my earlier post.
The attorney makes the determination of competence in the sense that if the attorney does not think the person is competent, they will not exrcute legal documents for them as they are legally unable to consent. The lawyer must br satisfied that the petson is able to understand and consent.
UncleDave, your answer is the one that holds up the most for me. The answer about waiting to see if he remembers or cares is good too. Just from my experiences on this website, I believe the POA is no longer valid if the person is incompetent therefore the question is moot. Either he wants to withdraw it and he's ok, or he's not ok, and either way the POA is no longer valid. Question is what now. I hope the person acting as POA when the person is incompetent is not going to get in trouble as long as they are acting in the best interests, because that is the only thing that won't throw the person in need into financial and emotional problems. What would the alternative be? To seek guardianship? Bad choice, as joannes has proven in her answer. To stop acting as POA, also bad since the person needs help. To seek DPOA now may be too late, and may not stand up in court. Best to lay low and do that which needs to be done and no more. INMO
{Q}mentally incompetent due to illness or accident while you have a power of attorney in effect. Will the document remain valid? To safeguard against any problems, you can sign a durable power of attorney.{EQ}
I am not a lawyer {grin}. A regular POA unless I am mistaken requires compliance with the person's directions. If they are incompetent the POA is moot. That Is why a DPOA is needed and substantially different. I'll yield to an elder affairs lawyer. Acting on a POA from a incompetent person could get one in deep yogurt. Personally I wold only act using a plain ol POA if I had the instruction for the particular use in writing. Quoting one of my favorite contributors to knowledge network groups Attorney at law Kevin P. Keane: "agreements not reduced to writing, are NOT worth the paper they ain't written on."
I am from AZ. My Dad had signed both types of POA...durable and medical....due to his dementia. In order to keep them in effect when he wanted to cancel them, the lawyer required written reports from two MDs who were seeing him, stating that he was not competent to handle his own financial affairs or health care decisions anymore. When the lawyer presented this to him, my Dad was going to fire the lawyer and get another one. Lawyer said to simply wait and see what he did, because either he would forget or he would make an app't and a new attorney would assess in about 30 minutes that he was not OK, and would refuse to take the case and revoke the POAs. My Dad forgot. The elder care attorney said, if Dad kept insisting and did not drop it, we would have to spend a few thousand for a guardianship hearing, but that the letters from MDs would make it a clear cut decision for a judge, rather than a long drawn out procedure. The problem with guardianship is that Dad would have been required to appear and to have his own attorney represent him and then you get into one side trying to prove he was OK while the other side is trying to prove he is not....and it becomes family against the individual, which often destroys relationships.....so it's best to go into it with the doctors' letters already done because this will be strong evidence for the judge, and keep it from being 'family' says he's not OK. Guardianship cannot be reversed, but it's very expensive and takes a lot of control away from family handling things like with a POA.
In Louisiana you need clear and convincing evidence that the person is not mentally competent, not just family members saying that they are not of sound mind. I agree you need to ask an attorney in the State where the elderly person resides. In Louisiana a judge would have to have a hearing and rule them not mentally competent. If they are found to be mentally sound, they can revoke the Power of Attorney. If not, the latest one made when they were of sound mind would stand. Each case stands on its own and the judge decides. Ask an attorney.
Yes Dave any competent person can but what about the posters question about a dementia patient. I would think that would be different. This is a very good question, would like to see legal findings in such a case. Thank you AT for raising this question. I hope we get some solid answers.
you can revoke a power of attorney at any time. Simply notify your agent in writing and retrieve all copies of your power of attorney. Notify any financial institutions and the County Clerk's office, if applicable, that your agent's power of attorney has been revoked. legalzoom/articles/what-is-a-power-of-attorney Suppose you become mentally incompetent due to illness or accident while you have a power of attorney in effect. Will the document remain valid? To safeguard against any problems, you can sign a durable power of attorney. This is simply a general, special, or health care POA that has a durability provision to keep the current power of attorney in effect.
An elder law attorney could answer this for your particular state. If someone is competent then they can legally enter into contracts. If someone is not then they cannot. This determination needs to be made, however, and it can be questionable for a period of time. It takes more than just family members saying that a person is not competent.
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The thing is, what he and his mother have done seems at first sight a perfectly practical way of helping your father. You're - to me - an unimaginable distance away from your father, the son is right there, it's much easier and quicker for him to handle the day-to-day stuff; he's actually doing your family a favour.
Where it seems to have gone wrong is at the KY attorney's office, where quite possibly it was the attorney who recommended an unnecessary belt-and-braces approach to getting things formalised, which has had the effect of creating a legal puzzle that should contribute nicely to both attorneys' golf club subscriptions. Does this blanket "all previous POA blah blah" pro forma also revoke healthcare proxy appointments and directives? Good question. Should take up hours of chargeable time, heh-heh-heh...
More seriously, the attorney doesn't have to have been behaving in this self-interested way: it's equally possible that they just have a standard format for changing POAs and he went merrily ahead with it, assuming you were out of the picture.
It's a shame nobody thought to pick up the phone and discuss this with you. Still.
So if you can clarify with the "stepson" and with your father what the situation is, and agree what your father would like it to be AND what you are satisfied with, you could save everyone a lot of money and trouble. Any chance of doing that?
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Upon arrival he was tested and was classified as moderately mentally impaired.
30 days after my 86 y.o. dad was admitted, my dad's 84 y.o. "girlfriends" son took my dad to an attorney so my dad could designate him poa to pay his household bills only.
The attorneys office had him sign a paper that stated any and all previous poa's that were in effect prior to that date were now void.
My father had a will, general poa, durable POA for Healthcare and an end of life declaration stating his wishes for/against life support if ever needed and designated me to execute those decisions if he can no longer do it himself. ( The girlfriends son lives an hour away from my dad in KY, where I live in Texas, so it makes getting daddy's bills paid in a more timely manner so they are always paid on time for the "son" to do this).
My Q: is...#1) having already being deemed moderately impaired from the dementia, does anyone stand a chance on taking the legality of this document to court to get it ( the sons poa) overturned???
Q: #2) I believe that the durable Healthcare and his end of life declaration that he had drawn up designating me as his POA in those matters should still be in effect....right??
I spoke to the attorney who prepared daddy's original documents and said he found it hard to believe that any state would have such a non specific poa nullification document and since that paper was being signed came about only because he was changing his POA for paying his household bills only...and had nothing to do with his health care poa or the durable Healthcare poa, the original document ( from '91), that I am still my Daddys legal poa for his Healthcare if/when he needs me to fill that roll.....Q: #3) Is this true???
Is there someone else with a legal background that can confirm or deny what the original attorney told me this evening???
Thank you ever so much!!!
DoeEyes
The hospital asked for whatever authority I had to act, I provided copies of both the Living Will and the DPOA. At the time, there was such a higher level of anxiety on the medical issues that I don't even recall asking them which document they would rely on.
As I recall though, the activating basis of the DPOA was that my father be unable to make decisions for himself, which was going to be the case once the intubation was completed and he was chemically induced into a coma.
I think most of the emphasis is on lack of ability to make cogent decisions because of dementia, but our situation is one in which a DPOA was mandatory because of the advanced state of deconditioning and ancillary factors that necessitated induction into a comatose state.
I think another use for a DPOA would be if someone was in an accident and medically or mentally unable to make any decisions, as to finances or care.
I do think you're right, that used properly, it can bypass the guardianship route, which is a much more expensive and controlled route.
As to the question whether a POA is voided when the maker becomes incompetent, I don't believe that's the case, but is rather ONE of the purposes of creating a DPOA. I think the maker's ability to make decisions would be considered limited, if still existent, but that wouldn't void the DPOA, only the maker's authority to make changes....if all that makes sense. It does get murky, doesn't it?
I've also worked for attorneys who've drafted limited, issue specific DPOAs, such as when my sister bought her house. The owners wanted to move out of state and didn't want to remain instate until the closing. So their attorney drafted a specific, Limited DPOA so a friend could execute closing documents for them.
My dad was in and out of "lucidity" and with doctors, lawyers, other neighbors He would tell them I was his daughter, but with me he would either pretend he didn't recognize me or really didn't recognize me. My feeling was he was deliberately trying to hurt me, because I wouldn't do what he wanted (quit my job and move in to take care of him, entertain him etc full time).
The lawyer told me my only option was to hope he didn't contact the lawyer who drew up the POA or to take action by getting a guardianship. He said in a hearing, a lawyer would represent my father's wishes, and even if a guardianship was granted, that my father would have a say in who his guardian would be. He was so spiteful and angry I think he would have insisted on someone other than me, if for no other reason than I was trying to say he was out of his mind ( which was a lifelong fear, and in fact came to pass).
That was in NY where he lived. I managed to get him back to where I live in Louisiana, and checked on getting a guardianship here and got the same answer. Louisiana is under Napoleonic Code, so if it is the same in NY & LA my guess is that it is equivalently difficult in all states to declare someone incompetent. And it should be very difficult to declare someone incompetent or we end up in a nightmare society where anyone can be deemed incompetent by greedy or selfish family.
It makes it agonizing for honest people who are trying to do the right thing for parents or relatives who are unable to cope gracefully with the indignities of old age.
My heart goes out to you. I have been there and agonized through making decisions where there was simply no good solution. I had to choose the least worst option, and it takes a heavy emotional, mental and physical toll.
There is no help for caretakers. There is no economic help unless you live with them and can get head of household status. There is no legal help, all of the laws are for the protection of the elderly person, none for the protection of the family caretaker from an abusive elder. There is no emotional help--what can a counselor tell you to help on a daily basis--get away? Take care of yourself? How do you do that? You still have to go back to the demented one and cope with the verbal, abuse, threats, accusations, paranoia, yelling, demands for constant attention, complaints, and lack of sleep. The dread becomes overwhelming and the only relief is knowing it can't last forever. But that is of small comfort when you are in the middle of it.
The advice I got from this site helped me feel less alone, so I hope it is of comfort to you too..
I am not a lawyer {grin}. A regular POA unless I am mistaken requires compliance with the person's directions. If they are incompetent the POA is moot. That Is why a DPOA is needed and substantially different. I'll yield to an elder affairs lawyer. Acting on a POA from a incompetent person could get one in deep yogurt.
Personally I wold only act using a plain ol POA if I had the instruction for the particular use in writing.
Quoting one of my favorite contributors to knowledge network groups
Attorney at law Kevin P. Keane:
"agreements not reduced to writing, are NOT worth the paper they ain't written on."
Your best bet is to contact the Bar Association in your area to locate an elder law attorney who can advise you.
Suppose you become mentally incompetent due to illness or accident while you have a power of attorney in effect. Will the document remain valid? To safeguard against any problems, you can sign a durable power of attorney. This is simply a general, special, or health care POA that has a durability provision to keep the current power of attorney in effect.