Dear Mr. Premack: My mother named me as agent in her financial and medical powers of attorney. Now, years later, she has dementia to the point where she cannot give consent. What is the legal process to add my husband as backup agent if I were to die? I am the only surviving child and my father is deceased. I want to create a list of folks who could be responsible to help my mother. Are these things I can put into my Will, or is there another legal document for this? DKH

Your mother has the legal right to due process under the law, the right to privacy, and the right to make her own decisions. Even though her medical dementia has made it impossible for her to exercise those legal rights, they still exist and cannot be ignored.

When she signed those powers of attorney (naming you as agent) she granted you authority to conduct her financial affairs as her fiduciary and to make her medical decisions in accordance with her known preferences. She had the legal right to name alternates, so she either decided she only trusts you or she did not understand her options.

You cannot legally select alternate agents for her. You cannot alter the documents which she signed, and cannot place binding instructions about this into your own Will. But other options exist:

On the financial side: if her power of attorney expressly allows it, then as agent you could hire an attorney to create a trust to manage her finances AND to appoint alternate managers (like your husband) to act if you die or are disabled. If the power of attorney does not expressly allow it, then you do not have authority to create a trust for her.

On the medical side: if you become unable to act as her agent, a law called the "consent to medical treatment act" can be invoked. It authorizes categories of individuals to make her medical decisions for her, but ends if she is hospitalized (which is why relying on this law should not be anyone’s first choice). Under it, your husband would be authorized to handle routine medical decision for her while she lives in the nursing home.

The absolute solution when you cannot continue as agent is for your husband to petition the court to become her legal guardian. This protects her legal rights and gives him authority to manage her finances and medical needs. But it is also slow, expensive and public. Your mother’s decision to name only one agent left a void that is hard to fill, so be sure to select backup agents when you sign your own powers of attorney.

Dear Mr. Premack: My mother is 85, is in a nursing facility and has only her home and $60,000. She wants to gift the money to her three children. If she does that and applies for Medicaid will we have to pay back the state? JC

You are confusing two Medicaid regulations. The first says a person who gives away money will be disqualified from receiving Medicaid. If she gives away her money and applies for Medicaid, she’ll be refused benefits for about 1-1/2 years. The second allows the state to be paid back from remaining assets after a Medicaid beneficiary dies. If she eventually gets on Medicaid, this second regulation allows the state to be paid back against her house. Her agent (under her power of attorney) should privately consult an elder law attorney about her legal options.