How do I take power of attorney for my father away from my mother who is his ex wife?
My mother, who is no longer married to my father has his power of attorney. She is not making appropriate decisions based on what is best for him. How do I remove her as power of attorney?
This is the text of Apromise4mom's link (thank you for doing that).
************** "You want to know if a durable power of attorney made out by one spouse to another expires when the couple gets divorced. [I'm not sure from your question if you gave your ex a DPA, or if he gave you one. For purposes of my answer, it doesn't matter.]
A durable power given by one spouse to another spouse NOT expire after the couple has gotten divorced. If the spouse who gave the DPA no longer wants his or her ex-spouse to have authority under the DPA, he or she should revoke that DPA.
It is possible that one state, or perhaps a few, has a law that provides that a DPAs given to a spouse expires after a divorce. I am not an expert on every state's law on this. Still, it would be easier to revoke the DPA than to research a state's law on this." *************
Although I appreciate the expert's taking the trouble, I have to disagree that it's easier to revoke a DPA than to check what law applies. And in the case of our current OP, here, it may prove impossible for his father to revoke the DPA. So check. And report welfare concerns to APS regardless.
The POA is invalid after divorce. (Unless otherwise ordered by a judge or at the request of your father). At least, that is what some really smart people have posted before, and I believe them. I am just following logic here, but no one needs to resign if the POA is invalid.
If your father is receiving Social Security, take him there and have them assign "Rep-payee" to you, or to a responsible fiduciary.
To save time, and if it is possible, open an account to receive the funds (so you can give SS the routing number) at the time of visiting the SS office.
Please check these facts out yourself by going to the SS website, looking up "Rep-payee". You can also call SS to notify them of the divorce. How long has this been going on?
Note: A rep-payee ends at divorce also. So maybe this can be done without first notifying his ex-wife. Then SS will tell you about notification.
Do your homework, and if you feel unqualified, get someone who can. imo.
Disclaimer. I am not an expert, but my dH and I are surviving just fine.
I went through something very similar, my younger sister has the POA of my mom. My sister and I got into an argument about a BUSINESS decision I made, then she limit my access to my mom, she's even had me arrested for trespassing when I arrived to visit my mom. She put a TRO against me on my mom's behalf, because she told elderly protection I'm a danger to my mom. I filed a petition to have my mom interdicted, due to her dementia. I also filed a petition to be my mom's Curator and my daughter to be my mom's Under Curator. The judge interdicted my mom, named my sister Curator, and me Under Curator, here's the blessing, the Curator has to answer to the courts and sibilings, the Under Curator is like the watch dog, letting the courts and sibilings know if the Curator is not acting in the best interest of the interdicted person. ALL major decision MUST BE discussed with and approved by the Under Curator. The Curator also has to provide financial and health information to the court and all siblings bi-annually. It's a difficult transition for my sister, she not use to telling us anything about our mom, she ran the show alone, but I love it, my sister is in contempt now, and we're awaiting our court date. Before the interdiction I had nothing, no voice, no input as to what decisions are made on my mom's behalf. NOW I have an input. Good luck!!
Inform your mother that she doesn't seem to be doing what you feel is right for your dad IN WRITING - then document everything & use your cellphone video function to help - if you suspect abuse either physical or mental or verbal then install a 'nanny cam' to protect him -
Once you have proof then show her it all - then ask her to resign so that the backup P.O.A. [hopefully there is one on the P.O.A. papers] can step forward - but be aware that this may cause friction between you & your mom but she may look at it as a relief too - however if you think some of her choices have caused his rapid decline you must at all times protect the person who is most vulnerable at that moment
If you are concerned about fraud or elder abuse, you can try calling Adult Protective Services. It does usually require court involvement to get someone removed as POA.
Of course, you can also try seeing if your father is able to revise it with an attorney, but often in your situation people aren't able to get the older person to a lawyer because the POA is preventing it, or because the older person doesn't want to go, or because the older person no longer has capacity to revise the POA. (Lucid moments may or may not cut it, when it comes to capacity.)
I would also recommend you keep detailed notes as to what your mother is doing, why you are concerned, and also collect evidence from others, if possible. Good luck!
I encourage you to try and get your father to assign the new POA to you. It will seem like I am stating the obvious but I can relate to the situation you describe and from now on he will more and more need to be under the care of someone who has his best interest at heart and that's not his ex-wife but you. Try to get some support and an understanding lawyer. Go for it. Blessings.
Hawk, it is my understanding that he only needs to be lucid at the time he changes his POA, not 24/7. Does he have certain times of the day where he is more with it? As long as the lawyer/notary is satisfied he understands what he is asking for and signing then it should be possible for him to assign a new POA.
Your dad is the only one who can change his power of attorney. You can get a lawyer and apply for guardianship over your dad but beware, this is a lengthy and expensive process.
It would be cheaper if you could get your dad to change his POA himself if he is able to do so but if he suffers from dementia this isn't an option and you're back to gaining legal guardianship.
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**************
"You want to know if a durable power of attorney made out by one spouse to another expires when the couple gets divorced. [I'm not sure from your question if you gave your ex a DPA, or if he gave you one. For purposes of my answer, it doesn't matter.]
A durable power given by one spouse to another spouse NOT expire after the couple has gotten divorced. If the spouse who gave the DPA no longer wants his or her ex-spouse to have authority under the DPA, he or she should revoke that DPA.
It is possible that one state, or perhaps a few, has a law that provides that a DPAs given to a spouse expires after a divorce. I am not an expert on every state's law on this. Still, it would be easier to revoke the DPA than to research a state's law on this."
*************
Although I appreciate the expert's taking the trouble, I have to disagree that it's easier to revoke a DPA than to check what law applies. And in the case of our current OP, here, it may prove impossible for his father to revoke the DPA. So check. And report welfare concerns to APS regardless.
At least, that is what some really smart people have posted before, and I believe them. I am just following logic here, but no one needs to resign if the POA is invalid.
If your father is receiving Social Security, take him there and have them assign "Rep-payee" to you, or to a responsible fiduciary.
To save time, and if it is possible, open an account to receive the funds (so you can give SS the routing number)
at the time of visiting the SS office.
Please check these facts out yourself by going to the SS website, looking up "Rep-payee". You can also call SS to notify them of the divorce. How long has this been going on?
Note: A rep-payee ends at divorce also. So maybe this can be done without first notifying his ex-wife. Then SS will tell you about notification.
Do your homework, and if you feel unqualified, get someone who can. imo.
Disclaimer. I am not an expert, but my dH and I are surviving just fine.
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I filed a petition to have my mom interdicted, due to her dementia. I also filed a petition to be my mom's Curator and my daughter to be my mom's Under Curator. The judge interdicted my mom, named my sister Curator, and me Under Curator, here's the blessing, the Curator has to answer to the courts and sibilings, the Under Curator is like the watch dog, letting the courts and sibilings know if the Curator is not acting in the best interest of the interdicted person. ALL major decision MUST BE discussed with and approved by the Under Curator. The Curator also has to provide financial and health information to the court and all siblings bi-annually.
It's a difficult transition for my sister, she not use to telling us anything about our mom, she ran the show alone, but I love it, my sister is in contempt now, and we're awaiting our court date. Before the interdiction I had nothing, no voice, no input as to what decisions are made on my mom's behalf. NOW I have an input.
Good luck!!
Once you have proof then show her it all - then ask her to resign so that the backup P.O.A. [hopefully there is one on the P.O.A. papers] can step forward - but be aware that this may cause friction between you & your mom but she may look at it as a relief too - however if you think some of her choices have caused his rapid decline you must at all times protect the person who is most vulnerable at that moment
Of course, you can also try seeing if your father is able to revise it with an attorney, but often in your situation people aren't able to get the older person to a lawyer because the POA is preventing it, or because the older person doesn't want to go, or because the older person no longer has capacity to revise the POA. (Lucid moments may or may not cut it, when it comes to capacity.)
I would also recommend you keep detailed notes as to what your mother is doing, why you are concerned, and also collect evidence from others, if possible. Good luck!
It would be cheaper if you could get your dad to change his POA himself if he is able to do so but if he suffers from dementia this isn't an option and you're back to gaining legal guardianship.