I have been a caregiver for my parents and 3 siblings for almost 35 years. I started at the age of 18. Dad passed and left the will to my mum. My mother has been in a nursing home for a few months now because she is not capable of signing. I had to get a medical report from the doctors to sign power of attorney. I didn’t want to sign for myself so I told my only brother that we'd both sign. Well of course he didn’t want to miss out on the opportunity. A while went past and I kept asking my brother that he and I must sign the power of attorney just in case mum passed and there will be no power of attorney. He kept delaying it and of course I had my suspicions. It turned out that he had signed for the power of attorney for himself and didn’t include me in it. Until this day I’m not sure if he took his wife to sign as well, he's never been caring for any of them, his wife never visited the house or the nursing home.

Is what brother has done illegal or legal? And is it fraud? How would I able to prove that my mother has always said that she wants me and my brother to be a power of attorney not only one of us? She has dementia and can’t rember what she says or how to sign.

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You cannot get a POA without your Mom assigning you or your brother. Since she has ALZ/Dementia, then thats impossible since she can't make informed decisions. The only other option is guardianship and you have to be informed that he is filing for it so you can contest it or not.

Maybe brother was misinformed or lawyer overstepped his bounds but it was illegal what he did. If this was something the NH was involved in I would question how they have the right to do so. It maybe just temporary to get paperwork signed for Mom not a power over all her finances and future Medical decisions. If so, from this point someone needs guardianship.
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Both above would be correct. Only mom can sign a POA and it would have to be legally notarized to be valid (this means a witness + a notary). So brother cannot do this legally or otherwise. AND MOM would have had to sign in front of the witness and notary.

You talk about medical report "to sign POA" - this is not correct. You obtain the medical report (which you did) "to invoke the POA" (make it valid so that you and/or brother can make medical and financial, residency decisions for mom".

I suggest you talk to brother and tell him you would like to see the POA. If he refuses, advise him that it may not be legal because mom didn't have mental capacity to understand and sign even if she were coerced by her son to do so.

If you have a letter from her doctor that she didn't have mental capacity to make decsions and this letter pre-dates brother's POA -- then that makes brother's POA invalid.

If the attorney and/or notary of record on the POA did not see or talk to mom -- then that makes it invalid and their "notary" privaledge could be revoked legally.

Good luck.

Usually the facility wher
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MargaretMcKen Sep 2018
I'm getting the impression that the rules vary between states - a notary is not required in many places. Issues about 'invoking' the power also seems to vary. Definitely one for local legal advice.
I think that you need some legal help to sort out what has happened, because your post sounds a bit confused. It is your mother who would have to sign the Power of Attorney, and she couldn’t validly sign if she was no longer medically competent. The only medical report that would be relevant is one to say that she was still competent, not to authorise someone else to sign for her because she was incompetent. (In some places the person who is being given the Power of Attorney has to sign to accept it, but not always, and it is mother who is the most important one because she is giving away power to act on her behalf.) If the issue is that your brother signed your mother's name, the document is invalid and also yes it was fraudulent (unless he has a very good story about why he misunderstood). When mother dies, the Executor under the will takes over managing her affairs and her estate - the POA lapses as soon as she dies. Yes it does sound as if this needs to be checked out, but I think you may have not understood how it all works. Do you have a copy of the will, and do you still have a copy of the medical report? Take all your paperwork when you ask for advice, don’t rely on your ideas about what happened. Best wishes, Margaret
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You will need a lawyer. I don't think what he did is fraud; unethical yes! The big problem I see is your brother tells the Judge (for example) that mom wanted him, and you tell the judge that she wanted you! Now it comes down to he said she said! I would speak to a lawyer who practice elderly law. If money is a problem than call a lawyer and see if you could ask him/her a few questions, you be surprise at how much information you can get for free. You might have to call a few different ones. This is a trick I have used many times. Don't forget to ask them their prices even if you don't plan to hire them. I know it seems wrong but they will only give you about 5 to 10mins. Sometimes you can find a lawyer who will give you a phone consult for about $25 to $50. I have done this as well. Worst case go to Google and see it you can find answers there. I wish I could remember the law web site I use to use.

I hope things work out for you.
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