How valid is a new POA requested by mother to her lawyer when she was experiencing sundowning/delusional thinking?

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During the time when my nearly 86 year old mother had shingles, with sundowning, she increasingly became more and more delusional. Both my sister and I stayed with her during different weeks caring for her. She has always been a difficult person, but we've always tried to be positive. During this time, we noticed she was wandering at night with no memory of it, heard loud noises at night that we did not hear, and began accusing us of stealing things. She has had a personality disorder, we believe for years, that was never addressed. She also has done what is called automatic writing for years, much to our disgust and many requests for her to stop. It was terribly negative and hurtful. She continues to do this, having thousands and thousands of pages in notebooks stacked up with nonsense. She tries to keep this writing secret. We have from time to time seen what lies inside her head in glancing at this writing. Now it appears to be mostly used as a strategy to help her remember life around her but still a complex mental health issue: "You broke your spatula" or "You noticed a woman's long nails the the bank" or "You will buy a fish sandwich at McDonald's because you are hungry" or "Your family does not know what is coming, but they will soon". It is a very upsetting, unresolved behavior.

She called me with 'glee' recently and declared out of the blue (and proudly) she had driven (she should not be driving--but that's another long story) some distance out of town (45 miles) to see her lawyer to have her POA changed to our out-of-town, non-communicative brother. She said she couldn't trust my sister and me any longer (of course we're the ones who care for her and know her best).

When she first got shingles, we were concerned about her mental health as well as her physical health and asked many questions. We were concerned she was acting irrationally. We were so concerned at the time, we called her lawyer to ask if we still had the health care proxy because we were not sure Mom wouldn't end up in the hospital and decisions would have to be made. During our conversation, we voiced our concern that Mom had some very irrational behavior. We also knew if our mother knew we had made the phone call to her lawyer, she would have a fit--even though we were trying to help. We also mentioned that.

When she very soon, just out of bed, drove up to her lawyer's to change her POA, her lawyer was under obligation to mention we had called. When Mom surprised me by telling me she had been to her lawyer and made the change and why, she told me she had told her lawyer how untrustworthy her children were, etc., telling him things that were totally untrue. She told us her lawyer said, "Well, they'll have Hell to pay, then." She was very upset we had called her lawyer and screamed and yelled over the phone. I explained to her that she was quite sick and might end up in the hospital, and we may have to make some decisions and were unsure if we had the authority to do so. She still was irrational over the phone, which was evident she could no longer process information well.

My brother, who now has POA, and a signed letter he drew up and had Mom sign saying he had access to her medical records, is someone we love, but not with his head in the game regarding her care. He not only lives out of state, but he is non-communitive and leaves us with all the responsibility and financial pain woes (another long story) of Mom.

Does changing this POA have validity when she's become so irrational and delusional--and us giving her lawyer a prior's heads up before she made her visit to his office?

Mom can no longer listen to reason and simply is unable to do so. She lives alone and won't see a doctor any longer and will not share any financial information. We feel obtaining guardianship is our only recourse, even though we don't relish all the negatives it entails. But without doing so, we don't see how we can really help our mother. Then of course, even if she is declared incompetent, she is unlikely to comply.

Thoughts would be appreciated...

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Wow! What a can of worms!

It sounds like your mother has been mentally ill for years, and now may also have dementia. Is that how you see it? But it also sounds like there is no medical paper trail of these conditions -- she has never been diagnosed or treated for these problems. Is that also right?

Even people who have an "official" diagnosis of dementia can change their POA if they understand what they are doing. (If you are having dinner every night with little men from Uranus, you can still understand what it means to assign someone to act on your behalf when you cannot.) From what you are saying, I think you would have an extremely hard time convincing a court that Mother was not competent (in the legal sense) to make the POA change. This is NOT my profession, and I'm just sharing a layman's opinion.

I'm going to share another opinion: You say that your brother "leaves us with all the responsibility and financial pain woes." Oh my dear, no, no. that is not what happens. HE now has the responsibility of handling Mother's financial affairs. Mother assigned that responsibility to him. You and your sister need to step out, completely. If you allow yourselves to be in the untennable position of having responsibility but no authority, then I'm afraid Mother isn't the only one whose mental health is in question! Turn all the financial pain woes to this noncommunicative brother you love and Mother trusts completely. You cannot continue to act for her against her wishes now that she has recorded her wishes in a legal document. She wishes for Brother to act on her behalf. Respect that.

None of this is Brother's fault (I assume) and it is not your fault. It is just what Mother wants. Be sympathetic to brother, but firm. Offer to get together with him and bring him up to speed on all the dreadful financial details, and to turn over all the paperwork you have. It is his responsibility now. Of course, not having the POA authority doesn't mean you can't give mother money, if that is what you want to do, but you cannot continue to handle her affairs. Even if you file for guardianship, (and assuming you get it) that doesn't happen overnight. Until that issue is settled, Brother is responsible.

Would Brother fight you on the guardianship issue? I have no up-close-and-personal experience with guardianship. I've read that it can be lengthy, costly, and can result in a non-family member being appointed guardian. An elder-law attorney could no doubt give you an overview of what would have to be done, and perhaps some educated guess about the likelihood of your success. Others on these forums have had personal experience, and I hope someone will be along to share theirs.

My heart goes out to you. It sounds like all you and Sister want is for your mother to be well taken care of and to be protected from her own mental illness. It is heartbreaking that she is putting up barriers. I sincerely hope that you can not take her attacks personally and realize that it is her illnesses making her behave this way. It is in not way a valid reflection on you.
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