My brother resides 100 miles away, I am 1/4 mile away. I am primary care taker. How do I change an enacted POA to become #1?
I took my mother to the ER and was physically there with her, but had to wait for my brother to make decisions with a voicemail, and a return phone call back through out the night.
This is how resigning POA is commonly done (notarized letter to various parties), however the only issue that isn't discussed (others did point it out) is that if one has resigned the medical POA, what will happen if the alternate can't or won't perform the POA duties, for whatever reason (incapacitated, develops dementia herself, death) and principal can no longer appoint anyone? The only solution is going for guardianship, which isn't easy, isn't cheap and takes time.
I like the suggestions some people made, where the notification specifies one would be unable to be POA during a certain time frame, but have no idea if this is even legally possible. It would be nice if someone knows whether one can "temporarily" give up their POA duties. The only other question this begs is why would they not defer to #2 if they could not get an answer from #1? He could be on travel out of the country, incapacitated himself, meanwhile mom gets zero care because they can't contact #1??? One would think sure, make concerted effort to make contact, but the patient is the important one here and they should only give it some much time before deferring to #2.
In our case, two of us are named as POA (medical and financial), but there is no specification about who is #1 or 2. Even though one brother isn't listed, we consulted on various issues before proceeding. For the most part, all non-care duties fall on my plate (financials, medical, calls from facility, payments, procuring meds and incidentals, etc.)
If two people need to be named (there should be a second, just in case), it might be best to be listed as either/or rather than #1 or 2 (and certainly NOT one AND two), especially for those who get along and would work together rather than bicker, blame, and lambaste each other!) We have no idea where the future might find us (as in this case, #2 was further away when documented, but now is the "go-to".)
Want to save yourself all this worry and wondering: Contact:
HIRE AN ATTORNEY. I recommend contacting:
National Academy of Elder Law Attorneys
https://www.naela.org/findlawyer
naela@naela.org
NAELA Council of Advanced Practitioners
1577 Spring Hill Rd., Suite 310
Vienna, VA 22182
703-942-5711
naela@naela.org
Personal recommendation:
M. Carl Glatstein
Glatstein & O'Brien LLP
When I went away, I informed the NH that my sister, who was back-up POA, could be called if I couldn't be reached & never had any problem
First talk to the atty who prepared form and see if names can be reversed. If that cannot be done, get a letter from him to say something like: I am not available 24/7 to serve as POA #1. In the event a medical decision needs to be made and I have not returned your call within 15 minutes, the alternate person listed on POA will make the decision. - Maybe the attorney could create a legal looking document to clear this up.
I have been debating about sending it to the atty. All he wants is her signature. My brother might say that she didn't understand what she signed. But I feel that she does. I see her most of the time anyway.
If it comes to court, then the judge would see that I am taking care of her healthcare since she moved into her apartment last year and now with making sure that her medicine reminders are filled and taken to her weekly. Plus we take her to church on Sundays and only when she feels up to it. He told them when she moved in that I would be taking care her medicine.
We don't talk anymore anyway. We'll see what happens,right?
1. Hire attorney to draw up a durable power of attorney that names you and sibling as equal co-agents permitted to act independently. Most states allow this. Of course, it only works well if you and sibling are on good terms.
2. Get parent to sign three originals in the attorney's presence--one for you, one for sibling, and one for parent.
3. Even if your parent has some level of dementia, if he or she can understand a simple explanation of the legal document--then the parent probably has "capacity" in the legal sense. The bar is kind of low, in other words, for someone to sign most legal documents. Even if they already have an official diagnosis of dementia.
4. Remember that the power of attorney allows you to act, but it does not stop the demented person from acting. Demented dad can go buy a new car if you take away his old car. Demented mom can take out large amounts of cash from the bank for a "friend." Preventing these scenarios takes more than the piece of paper called the POA.
5. Take POA to parent's bank. You and sibling should go together. Probably no need to bring parent. Just make sure the document is on file at the bank. They will probably scan it and give it right back to you.
Caringdil -- many different documents must be signed in the ER. If the patient is unable, a POA or someone who has a Durable POA for Medical decisions is necessary.
Talk to hospital staff for assistance in the wording that they will accept & be able to implement. They won't charge you for that advice/clarification. Be sure to have updated copy on file with all local hospitals, LO's doctors and carry a copy. I would also scan to your phone with signatures, dates and Notarized clearly readable. A copy on a flash drive on your car keys is a good idea. You can also put lists of LO RXs, DRs, allergies, & medical conditions.
Many hospitals won't open the flash drive due to cyber security, but you can run to a office supply or copy center and print it out.
Hope this helps. I think it is good to have everyone in the loop. You should also have a time limit provision for treatment even if neither of you can be reached... including acceptance of responsibility to pay!
An ER will only do minimum to save life & limb in immediate danger of loss without someone signing release to bill insurance & responsibility for any balance.
Also be aware of exact rules the insurance has if there are any required or preferred Networks! Know what qualified as a covered exception and have that kept up to date in written Med. Directive & MPOA. This way hospital is directed in writing to make sure care provider is covered!
You didn't ask this, but if in Network Dr/hospital/clinic utilizes an out of Network Provider insurance should pay or the party authorizing the Out of Network Service is responsible for the bill. You put it in writing.
Generally if a in Network hospital, say uses specialist or Radiologist off site, then insurance is supposed to cover it since you went to Network Provider & have no control of whom they contract with. These Surprise Bills are a big problem these days, but mainly that people don't know their rights.
I had to fight this because the Only practice of Specialist needed were associated with OON hospital across the highway. If they are On all or only one available on staff, then they get grandfathered in for emergency or hospital stay. Outpatient they can require you to drive (50 miles in IL). Again know the rules & regs and put it in the documents. That way you are covered in a crisis.
Good Luck!
The only remaining legal option is for the brother to resign which would leave the mother without a back up POA.
If he resigns and God forbid, something happens to you then your mom doesn't have a POA.
If the form states unable or unwilling...then a notarized letter stating unable for a set amount of time (I would do 6 months) should default the POA to you.
Please talk to an elder law attorney before making changes that can not be undone.
I would start with having your brother write a letter in which he states his unwillingness to continue being POA. He should have it notarized. Then he should send it to you. You should make copies, and give one to your mom's primary care provider and keep the other copies at home. Take one with whenever your mom has an appointment or has to go to the ER.
"If I am no longer able to make health care decisions for myself, due to my incapacity, I hereby designate (print name, address and telephone number) to be my health care agent for the purpose of making health care decisions on my behalf. If he or she is ever unable or unwilling to do so, I hereby designate
(print name, address and telephone number) to be my alternate health care agent for the purpose of making health care decisions on my behalf."
Which couldn't be much plainer, simpler or more to the point and is straight from the DHS for Wisconsin's own website at https://www.dhs.wisconsin.gov/forms/advdirectives/f00085.pdf
So for instructions on how brother goes about formally indicating his inability (geographical) and/or unwillingness (because it's just not working very well), I'd give the DHS a call and ask them; but as the website is so good you might find the answer by searching without difficulty, I didn't try that far.
(Mom's dementia is so advanced she is not aware of paperwork, or decisions that need to be made, and allows me to speak on her behalf at the doctor's and at the ER).
It's the hospital, the doctors and the palliative care team that is following the chain of command. :/
I appreciate your response!
If I were you, I would consult an elder care attorney just to make sure you do things legally.