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San Antonio Probate, San Antonio Estate Planning, San Antonio Elder Law

Paul Premack, Express-News Banner

San Antonio Express-News
Copyright 2009, Paul Premack
October 27, 2009

Power of Attorney must be DURABLE to Help
Involuntary Discharge of Nursing Home Resident

Dear Mr. Premack: My mother signed a general power of attorney in 2006 naming me as Agent. Since then she has been diagnosed with Alzheimer’s which is progressing rapidly. She forgets to pay bills and forgets how to get to the dining room at her retirement home. She forgets to take her medication even though I lay them out in a weekly pillbox. Her doctor recommended that she move to assisted living. I took the general power of attorney to her credit union, and they accepted it. But the next day they phoned her, and she told them to refuse me access. The credit union has now refused to honor the general power of attorney, insisting that they will only accept a durable power of attorney or a court order appointing me as guardian. Even her retirement home has said she needs assisted living and wants me to help. What can I do? – GB


The credit union is insisting that your present them with a durable power of attorney, implying that the general power of attorney your mother already signed is not durable. In this context, “durable” means that the power of attorney continues to be legally valid even if the principal (your mother) has lost legal capacity. Thus, a power of attorney that is not durable ceases to be valid when the principal becomes incapacitated.


Fear of liability drives the credit union’s behavior. For all they know, your mother has seven children who constantly fight each other and sue anyone who gets in their way. The credit union does not want to violate their depositor’s rights, or violate the contract they have with her. So they insist that proper legal channels be followed.


Your mother is forgetful, but she is not necessarily legally incapacitated. Even the credit union accepted her verbal instruction to shut you out. Hence, if she is willing and if she can understand the meaning of the transaction, she may be able to sign a valid durable power of attorney to satisfy the credit union’s demand. If that works, remember that when you sign something as her Agent you actually sign her name to the document (not your name) and then print the words “by ___ (your name) __, Agent” to identify your role.


You’ve already seen the troubles that can arise when legal documentation is faulty. The general power of attorney she signed did not say the right things, and failed to help when the need arose. She could have gotten that form from a variety of places (a friend, the library or even the internet). This time, she should spend a few dollars with a qualified Elder Law attorney to be certain that the new legal document will be proper, up-to-date, and effective to the full extent of the law.


Failing that, the credit union’s other suggestion may be your only route: file in court to become your mother’s guardian. You won’t like the process, and neither will your mother. It is many times more expensive than the cost of a proper durable power of attorney. It is invasive of her privacy, and if approved by the court it restricts her civil rights. But it would get you the authority you need to handle her finances and to make new living arrangements for her.


Dear Mr. Premack: My brother has lived in a nursing home that has a special Memory Care unit for the last two and one-half years. His money may run out soon so he won’t be able to afford the monthly fee. Can he be required to moved just because he needs to file an application for Medicaid assistance? – Anon.


Not all long-term care facilities are approved to house Medicaid patients. If this facility is not Medicaid certified, then all of its residents must pay with private funds or with insurance benefits. According to the Texas licensure requirements, if the resident fails to pay for care provided then, after giving the resident at least 30 days advance notice, the resident can be discharged.


You can use the 30 days to locate a new facility that is Medicaid certified. Alert the administrator at the new nursing home that your brother will be applying for Medicaid, to be certain they have an available “Medicaid bed” (they may have a limit on the number of Medicaid patients they are allowed to house).

Prior Column: Durable Power of Attorney: Statutory Form is Flawed
Next Column: Pets: Estate Plan can include provisions for future care of pets

Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.


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