I have been told that because a doctor has not established that mom is incapable of making decisions, the Durable POA is not in force. Help?

I’ve consulted with a attorney about Mom making poor decisions and giving all money to addicted son. Attorney informed me that people are allowed to make their own decisions even if we think they are bad decisions. The POA is not for over ruling poor decision making as I understand it and can be revoked at any time. The inability to make decisions for oneself is actually a guardianship question I believe. Attorney also informed how difficult obtaining guardianship of a parent can be.

I found 3 years ago that PCP was lame ass. Namby pamby. Went to geriatric pyschiatrist. You know what helped us most? A geriatric behavioral health Center. 77k for one week. But MRI, numerous tests. And the big test.



Since then we have had definitive test. All the tests. Jeeze. Look up the FAST test. That is the one.
Once they get in throes of dementia, it is the definitive one. It is what hospice uses for dementia.

Functional ASSESSMENT testing tool

ETA. we have had SO SO many tests. The fast test gives you a scale. Of where they are. Given the number we had, it is the one I rely on. Abilities. And stages. It gives you some time line view of what you can expect. I don't know why PCP are so lame. But they are.

Eta yet again.

Medicare and supp paid the 77k. And she was in skilled nursing for first month in memory care. I was just gobsmacked it cost that much.

Get another dr. preferably Neurologist

A durable POA is a financial power of attorney that has a provision that states that the document will remain valid and in effect if the principal (the person granting the POA) becomes incapacitated and unable to make their own decisions. If it doesn't contain that provision of durability, it will end when the person is deemed incapacitated.

The EFFECTIVE DATE is usually immediate unless stated otherwise in the "Special Instructions".  What does your Mom's DPOA document state?  Does it state that it is effective immediately or that it is effective only when _________________ conditions are met?

If the effective date is immediate, then you can "invoke" the Durable POA today.  You do not need a doctor to declare your Mom as being incompetent in order for the POA to take effect.

Here are some websites to copy and paste to your browser. 

https://www.ohiobar.org/public-resources/commonly-asked-law-questions-results/law-facts/law-facts-financial-powers-of-attorney/

http://codes.ohio.gov/orc/1337.60v1

 Uniform Power of Attorney Act (sections 1337.21 to 1337.64 of the Revised Code):

This power of attorney is effective immediately unless I have stated otherwise in the Special Instructions.
 
https://www.lawserver.com/law/state/ohio/oh-code/ohio_code_1337-60

If you have questions about when the Durable POA goes into effect, then you need to talk with an attorney.  Legal Aid or the Ohio Bar Association should be able to read your Mom's Durable POA and tell you what your duties are and when you can do those duties.

You are correct, she is making bad choices, but she has that right. It sucks, I know. It is a tough time for families, loved one making really poor decisions and choices, but no way to legally intervene to save them from themselves.

Can you contact APS and report that she is being financially exploited? Being without food and giving the grocery money away goes a long way in proving that she is doing this under duress and potentially doesn't have the mental capacity to see this is harmful to her.

Have you tried telling your brother to stop asking because mom is going hungry because he's a useless deadbeat still sucking from his mommy. Sorry, this behavior is abusive and he obviously doesn't care, that in my book makes him pond scum.

Does your DPOA state when it goes into effect? If not, it is probably effective now. The thing is, it doesn't give you power over her to make her do things she doesn't want. It gives you the ability to act on her behalf and that is open to interpretation as to what is and isn't appropriate.

Good luck, it is a rotten situation and I hope that you can help her.

I have had durable POAs for my father who has been and remains competent, my late stepmother who was mostly competent, and my husband who has always been fully competent. My late stepmother had catastrophic stroke rendering her unable to really move or speak. She could nod and a lawyer let her sign a POA. My father is also physically disabled from strokes, so while competent, needs someone to do his business for him. When my husband was active duty Army he would do POAs with me whenever he had to deploy overseas since marriage isn't always enough to take care of business. From my own experiences I think a POA is in force from the time it is signed, but the person named POA has responsibilities that include only using it when necessary, and if used inappropriately that person would have that revoked and a looksee from APS. (We're also considering getting POA for my son when he reaches 18 due to autism and borderline intellectual functioning)

What type of POA was established? If it was a springing POA then she must not be capable. Our elder attorney strongly suggested we not do that. It includes a bolded statement under HIPPA provision that it does not require a doctor to determine capacity.
Check your document...

What do you need the POA for at this time?

One statement that is often made here is not always true, at least in Canada. A person who is mentally competent can have their POA take over their affairs. Of course they can revoke it at any time while they remain competent. My point is that a parent does not have to be declared incompetent for the POA to be active. I know of 2 situations where this is currently happening.

So, would your mother activate the POA herself? Or activate it in a limited capacity?

The durable POA is for the very reason of her lack of ability to make decisions.

At my mother's AL there is a schedule of 3 showers a week. It was determined she needed help with that. Most likely that help would be added to her monthly fee. It is a set factor.

You might try to tell her ( maybe over and over ) if she refuses to use a cane or walker she is at high risk for a fall which could land her in a nursing home. It took a fall my mother had last summer to never ever go anywhere without her walker.

It sounds like mom is still capable of making her own decisions. Those decisions may not be what you would like, but mom has the right to make her own decisions, no matter how bad you think they are.

Try to just sit back and relax and wait for the disease to progress, it always does.

You could always seek a second opinion. Does the assisted living have a doc on staff?