I have talked to an attorney to get Power of Attorney over my mom but have come to realize that she is incompetent. If she is incompetent to sign papers what can I do?

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The reason I want the power of attorney is that she has been living with me for a year and her home sits vacant. It is very old and in poor repair so will not get much for it but it is costing so much for upkeep, taxes, insurance, etc. and would not qualify as a rental. If she is incompetent to sign papers what can I do? She is another that refuses to go to a doctor. Selling the home would sure lift a burden of stress off me. Thank you, Loyalty

Answers 1 to 10 of 14
I would say that if she does not understand what she is signing the attorney will NOT let her sign. I recently did this with my Mom. She has dementia and is not doing well... Her house is for sale too... IT is hard to sell anything right now! take care
Top Answer
Hi Loyalty. Sorry you're stuck in such a difficult situation. It's one that unfortunately a lot of families face.

If your mom never signed a Power of Attorney and now wouldn't understand what she's signing and is incompetent to sign legal documents, you would need to get a conservatorship (or guardianship) of her. This is a legal process that goes through the courts where she is determined to be incompetent and someone is named to manage her affairs on her behalf. The process varies depending on where you live, but unfortunately it's usually costly and time consuming. You can find more information about it here:

You generally need an attorney to help with the process so you may want to go back to the attorney you spoke to or call your local Area Agency on Aging for legal referrals (sometimes they have low-cost legal aid services). If your mom ever completed a trust, you may also want to have an attorney look over it to see if a Power of Attorney was written into it (some estate planning attorneys include Power of Attorney and even Advance Directives into the trust as part of a complete estate plan). Worth a look if she has a trust just in case. Good luck!
Orphans Court for guardianship is the only way you can accomplish this if she is indeed incompetent to sign papers. You can do this yourself through your local county. Just go to your county website and look for the orphans court in your area. It may cost about $100 or so but that's it. You go before the judge and explain why and if you have any siblings they are sent a letter if they want to attend. If she is living with you then you will most likely be able to attain guardianship. Good Luck!
You can contact your area DSS - adult social services or. Explain your situation to them and they can help you with guardianship issues.
It might be another kind of court in your area -- I've been a conservator in more than one state, and one court was Probate Court and the other was a Family court. Good luck!
Generally an attorney is not the absolute decision maker concerning dementia or competency. And, there are attorneys and there are attorneys. One attorney may have one opinion and another may differ. It can be as simple as a matter of timing. A medical doctor is who should make the determination. You really should continue to get her to see a doctor. If you sincerely believe that your mother is having a good day and do not know with certainty that she is incompetent, think about having your mother sign with a witness and quite possibly have it notarized. The use of an attorney is not always necessary. If others are involved such as siblings, work together to do what is best for your mother. Don't do anything in secret. That would be ABUSE and wrong. And, as has been mentioned, there is the conservatorship route which could be costly. Do what is right and timely for your mother given honest circumstances.
I really agree with chadburbage1 because you do not need an attorney to do a POA, when she is having a good day, take her to a Notary and have a friend with no gain in the matter as a witness. You can type the POA yourself... There are sample websites and Staples have already typed ones and you just fill in the blanks. Also when you sale it, usually they just want to know the status of your mom and where she is..then they will let you close on the house without problem but again it depends on the attorney or title company. If your state has a title company I would choose them over an attorney. If siblings are involved you can get them to sign a typed document stating that they agree to sale the property and have a plan of what will happen with the proceeds. If you can have that documented in the same document that would be good b/c it will show that everyone is in agreement and it should also include that it is your mothers desire to have the home sold. If siblings not in agreement - Good Luck.
Thank you for all your answers. Gives me a lot to think on. Loyalty
While it is possible to catch her on a "good day", there is no guarantee that her "good day" is anything like "normal".
There are plenty of unscrupulous lawyers that DO assist relatives or other people in "guiding" an elder into re-doing wills, re-doing POA's in favor of the relative leading that effort [and, BTW, in favor of the atty who is helping htem do it, since they almost alwyas set themselves up as Executors!].
It is illegal, but trying to prove it afterwards is almost impossible.

FIRST: a Doctor needs to certify the elder as incompetent to manager their own affairs.
SECOND: family members ought to get a lawyer, I believe, to help write up papers that assign guardianship and POA to family members; if there are none, then a friend, or, a State appointed paid advocate.
START by asking advice of Social Worker.
That person should be able to guide you in the process.
Official papers need at least Notary Public stamp/signed.
They may also need, depending on the paperwork being done, legal help.
Loyalty, the simplest way to be able to manage your mother's affairs is the POA. Unless she is incompetent in the legal sense she can assign this to you. How did you come to realize she is incompetent? Have you had a medical opinion to that effect?

When I got POA for my husband his cognitive abilities were very unstable. On good days he was almost his old self and could converse sensibly about what needed to be done to help us deal with this awful disease. On bad days he thought I was trying to steal all his money. I explained this to the lawyer who was going to bring the various papers to the house for him to sign. She said "No problem. If he isn't good when I get there, I'll come back another time." Fortunately he was capable of understanding her explanations on the first visit. There was obviously no fraudulant intent here -- I just wanted to be able to fully care for my husband.

Is Mom resisting the idea of signing papers? If she is willing, or if she is willing when she is having a more lucid moment, I hope you can take the easiest path of the POA.

Good luck!

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