Trying to understand competency and a person's wishes.

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The situation is that I have financial and medical POA for my Mom. She has been asking me to help her sell her house and we have finally gotten around to starting that.

Meanwhile, my brother doesn't want us to sell the house. He is questioning her competency to have signed the POA. Now, I don't know if I should move ahead.

A lawyer did suggest I get her competency "recorded" by her primary care physician. We do have an appointment coming up within the next couple weeks, but she wants to move forward with the house and I don't know if I should force her to wait until the appointment with her doctor.

Here's where the issue for me is:
Mom has mild dementia and terrible memory loss. Most days, she does understand the POA does understand the details of how to sell her house and what she wants to do. She doesn't remember all of it, sometimes, but she does understand.

Unfortunately, since she does have mild dementia, on her "bad" days, she is angry about what I'm doing and doesn't want me doing it. On her "bad" days, she would probably undo it all. There are lots more "good" than "bad" days, but I'm not sure if that matters.

So, the POA is meant for me to carry out her wishes. My brother's point is that, on some days, she doesn't actually WANT me to get the house sold (usually, with him harping at her about it, but I'm not sure if that matters, either). I guess I'm thinking I should go by what she tells me she wants if she wants it i90% of the time.

I realize I'd get more information after her medical exam lists more details around her competency and probably as I work more with a lawyer, but I don't sleep nights waiting for all this. Any advice, thoughts, information to pass along?


Why does she want to sell the house? Is there a good reason?
I forgot to mention this, but she had moved-in with me, months ago. The plan was that she would move-in with me, we'd sell the house and she'd have a little money.

She is out of money. She doesn't even have enough money for the most modest funeral. She would like to pre-pay for her funeral to make sure it's taken care-of, possibly have a little money for an occasional trip to visit a relative, that sort of thing.

But the main reason is that it's her house and she wants to sell it.
I should have also added that she doesn't see the point in keeping it and paying all the utilities, home insurance (more than twice as much now that she's paying "empty house" insurance), taxes, etc...

She doesn't get a lot of money, per month, and these bills eat up a big chunk for a house she no longer needs nor wants.
And your brother objects to this reasonable plan because???? He's going to pay her expenses now for living, or for the house because he later on wants to inherit the house? No, didn't think he wanted to spend money. Does he want to be POA and become in charge of her money? You and mom are on the right path. Don't let him get away with pushing you off.
He says he's emotionally attached to it because it's his childhood home. Our parents bought it mid-way through our childhood, but I accept that he's attached to it. However, no, he's not going to buy it nor pay for its expenses.

I don't know whether or not he wants guardianship nor POA. He has made it clear to both her and me that she CANNOT live with him.

What I do know is that he's making it sound as if he's going to challenge this. This is why I'm getting the lawyers and we are spending some of the tiny amount of money she currently has on lawyers. Fortunately, the doctor's visits are covered by her insurance, though.

Here's how bad it is - she had an old car (old as in "not new" not old as in "antique and worth money"). She had actually wanted to give up driving, anyway, so we sold it for a couple thousand dollars so that she'd have enough money to cover her bills.

To save her money, I usually drive her to her appointments but we do have a great senior ride service that uses local taxis for $3/ride that she'll probably make use of, at some point.
I agree. It is a completely reasonable and good plan to sell mum's house and use the proceeds for her care, funeral expenses etc. However, for your own protection, it might be wise to wait for her competency to be recorded, as the lawyer suggested. Depends on how aggressive your bro might get to carry out his plan, which seems to be very suspect of personal gain. If you get a statement from the doc, I think your bro does not have a leg to stand on. If she was incompetent to sign the POA, then you would have to apply for guardianship. Is there any kind of record of her wanting this before she moved in with you - like anything in writing?

There is a big grey area when people are slipping into dementia. My mother is/was very bright so she scores well on tests. Her evaluation skills are now normal, where they were above normal before, yet her behaviour clearly indicates problems in evaluation. She scores 27 on a test for competency where the cut off is 30. The psychiatrists have not declared her incompetent, other than in the area of making medical decisions for herself, as she refuses treatment for the paranoia and depression she suffers from. I didn't know a person could be declared competent in one area, and not in another, and I don't know if that is common practice.

If your bro is harping on your mum to not sell the house, I would document that. There is no need of her money going to its upkeep only for the next generation. Your mum is quite right to want to unload it. Even if you do not have anything in writing about selling the house, I would recall and put in writing the gist of the conversations you had with your mum about it, her reasons for doing so and the dates. Be as specific as you can. I gather these conversations occurred before your bro started harping on her. I do think that that matters, as he is exerting undue influence on her or coercing her to carry out his wishes.

Definition of 'Undue Influence'

A situation in which an individual is able to persuade another's decisions due to the relationship between the two parties. In exerting undue influence, the influencing individual is able to gain an advantage.

The dates of both would be useful if it is contested i.e. that she started to change her mind at times after your bro pressured her, but not before. Good luck and let us know how it turns out.
None of us thought about POA. Actually, Mom's health went down about the time her finances pooped-out. She was having a hard time managing her finances and she asked me for help. I asked a lawyer friend who mentioned POA, I got the forms from the state she lived in, and brought them to her. I said that one thing we could do was the POA. She and I went over the forms pretty carefully, especially the "things to include" and "things to exclude" sections. So, it wasn't something we'd given lots of thought to before that.

Actually, I can't say for certain, but I'm actually fairly sure that a person can be declared incompetent in one area, competent in another, where you're allowed to manage one area of your life but not another. I'm sure there's someone reading this who will know if this is correct and will respond, hopefully.

Actually, she's been talking about selling the house and moving in with me, for years, but we had never recorded that. Now, with her bad memory, it would be hard to use her statements to back me up on this. So, she remembers some of it, but doesn't have the real sense of time to establish anything specific.

Anyway, good advice. Thanks for taking the time to put that to me.
Can anyone else attest to the fact that you and your mum have been talking about this for years? Was anyone else part of these conversations? I think your word would still hold on this. I am not suggesting using hers. You can recall/record that as her wishes during a time when, surely, she was competent. It could be argued that it is her incompetency which is not wanting to sell it.

I think your bro, at best, is grieving the loss of the house, and wanting to hang onto the past. At worst, he is in it for the inheritance. Does he have any suggestions about how mum can support herself without selling the house?

Sib problems abound at these times. (((((hugs))))
My husband and my brother are the only other two people who would know. Mom had a couple siblings she might have told, but they're gone. I wouldn't think my husband would count as a good witness and my brother says he doesn't remember it. Whether that is out of his own convenience (I do suspect he has selective memory) or because his memory truly is so bad (he does actually have a bad memory), I can't say.

My brother has no suggestions for anything. He insists he wants the house to remain off the market until he gets his things out but refuses to discuss when that might be. He makes no suggestions, at all. I would be open to hearing something like, "Hey, I'm busy with work but what if I come out next month and take a couple weeks to pack it up?," but he's not that kind of person. Everything is someone else's fault, by the way, and I'm the horrible person making his life difficult, basically, according to him.

I am kind of thinking the lawyer's letter to my brother will tell my brother that the personal property will no longer be covered once the insurance is switched, next month. That way, Mom doesn't have to pay the extra cost of insuring personal goods and he has notice that his goods aren't being insured (only the structure, accidental medical bills, etc...). I'm thinking "out loud" on this as I'm not sure what the lawyer will suggest the best course of action to be.

Thanks for the hugs.
I would strongly encourage you and your mom to seek the advice of an attorney who is highly knowledgeable in Asset Protection/Medicaid Law. Selling assets a few years before you may need services can be very tricky. Often the recipient's house is exempt and it's best to have it as opposed to have sold it, since you will have to trace those funds. I'm no expert, but got a big earful when I consulted with one about our situation. My cousin would probably have not transferred her property, but kept it as it would have been exempt. Plus, there are protections for the property of child caregivers. It may be what you end up doing, but I would really get peace of mind by consulting with an attorney about it. You need one that deals with this all the time and not just an Estate Attorney as they don't know all the technical loopholes.

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