By Carolyn Rosenblatt
Q: My husband's sister has Power of Attorney for their mother, but she moved out of state. We take care of her now. It will be hard to handle things with her still as POA. Can we take legal action?
A: First, it is essential that you speak with your sister in law about the difficulty of managing money for her mother from out of state. It is impractical and could cause serious difficulty if a signature is needed suddenly for something urgent for her mother. Suggest that she appoint someone local to do the job.
Most power of attorney (POA) documents have an alternate or "successor" power of attorney who is appointed to serve in the place of the originally appointed one, in case he/she can't serve or doesn't want the job. If not, it is legally permissible, as far as I know, for her to appoint someone else even if the document itself does not have a successor POA already on it. As you are caring for her mother, it seems reasonable to give the power to you.
You mention that her mother has been diagnosed with dementia. You haven't described how advanced the disease is at this time, but if you believe the mother is still competent enough to make a decision about whom she wants to have handle her money at this time, I urge you to seek the advice of an elder law attorney in your area, and find out the attorney's impression of the mother's competency.
It is possible that a psychologist, psychiatrist or neurologist may need to be involved to make the determination of competency, as it is not always so clear with dementia. Loss of competency with dementia happens gradually in most cases, without a clear line of demarcation between competency and incompetency at any given moment along the way. A professional can help you figure this out.
If the mother is competent, she cancel the prior document and can make a new power of attorney appointing someone other than her out of state daughter. If she is not competent, and your sister in law refuses to cooperate, the only other option is the last resort of guardianship/conservatorship. It requires going to court, it is expensive,and should not be considered unless you have absolutely no other options to keep the mother and her money safe.
Carolyn Rosenblatt is a registered nurse and attorney who has 40 years of experience. She is the author of "The Boomer's Guide to Aging Parents." Read her full biography