Updated: Feb 4
This column first appeared in the San Antonio Express News and other Hearst Newspapers on November 23, 2020.
Dear Mr. Premack: What should we have done? I am agent under my mom's Medical Power of Attorney. My mom's sister and brother-in-law are her agents under her Financial Power of Attorney. My mom has dementia and has been calling the police with her hallucinations and conspiracy theories and her sister and brother-in-law refuse to work with her anymore. I have been told she will need to go through a guardianship - but what should mom have done to keep herself from getting into this legal situation where financial agents refuse to serve? Mom refuses to listen to anyone, but she needs help. Maybe your answer can help me and help others? NH
Your mother is ill with dementia and is not the person she used to be. Her mental status now may or may not invalidate the legal plans she made while she was capable and competent.
She was wise in the past and created a Medical Power of Attorney and a Financial Power of Attorney. In non-lawyer terms, the words “financial power of attorney” are descriptive, seeming to give someone authority to handle her finances. But in legal terms, there needs to be a clearer picture of the type of power of attorney which she signed.
Powers of attorney which delegate financial control can be either a) durable, or b) regular. They can be a) immediate, or b) springing. They can be a) statutory, or b) have no tie-in to the statute. They can be a) limited, or b) general. Before any conclusions can be drawn, the actual terms of the document must be examined. Hence, I cannot tell you exactly what might happen in your mother’s situation.
However, if her power of attorney is a) durable, b) immediate, c) statutory, and d) general then I can tell you she signed a power of attorney which survives incapacity and gives her Agent wide latitude to help. If her power of attorney is a) regular, b) springing, c) not statutory, and d) limited then her power of attorney is likely invalid today because of her dementia. Powers of attorney that lack the legal words which make them survive disability are of little value.
If she worked with an experienced attorney, then her durable power of attorney should be durable and should have many other helpful features like appointment of successor or alternate agents. You said she appointed her sister and brother-in-law as agents and they both refuse to help now because of her behavior. Ideally, the durable power of attorney names you or someone else close to your mother as a successor. If so, your aunt and uncle can sign a document to officially resign as agents, which would put the next named successor in the driver’s seat.
If there is no successor named in the durable power of attorney, or if it is not durable at all, then there may be little choice but to file for guardianship over your mother’s estate. Unfortunately, guardianship is a slow, intrusive, and expensive procedure.
Her delegation of Medical power has a rosier outcome. Medical powers of attorney are always durable, and you as agent are willing to continue to help your mother. If her doctor has certified that she is unable to understand the health risks and benefits of treatment, the doctor can turn to you for a decision.
You must also be aware that a mere doctor’s diagnosis of dementia does not strip your mother of her legal rights. She could, at any moment, whether cogent or not, revoke all of the powers of attorney. She could get conned and lose money. If that happens or is likely, you may need to file for guardianship.
A much more concrete legal foundation would exist had she, while capable, created - with her skilled attorney (not via the internet or with an insurance agent) - a proper living trust. Her financial resources would be under control of her selected Trustee, the Trust would avoid guardianship of the estate, and it would be targeted directly at providing for her ongoing needs.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.