Can my brother have my mother sign a POA after she has been diagnosed with mild dementia?

1. The issue of whether someone is cognizant to execute legal documents isn't always clear cut. What documentation do you have on your mother's "incompetency", who signed it, what exams were done, when was it done, and when was the POA executed?

Was it drafted by an attorney? If so, that attorney should have privately met with your mother before execution of the document to ensure that it reflected her wishes as well as that she understood the implications.

2. I would contact the realtor and advise briefly of the situation, emphasizing that you do not believe your mother (a) was mentally qualified to sign a new POA naming your brother as proxy (b) that you and your siblings are challenging the validity of the document (c) that you have contacted counsel and are prepared to contest the validity of the document.

3. If it is determined to have been improperly executed, or executed under duress, the actions of your brother will be determined to be invalid. That would include signing a listing agreement, and any deed he would be signing to convey the property.

4. Court involvement in upsetting and reversing a home sale would likely be a nightmare. The owner would be furious, the realtor would lose its commission, but even before that, injunctive relief might halt the sale indefinitely.

Get on this one quickly; realtors want their money; if they know there are potential litigation issues involved, they'll either want to rush it through or step back, assess the situation, and cover themselves (CYA mode).

5. Consider hiring an elder law attorney in a mid-sized practice which also has a litigation practice area. Get an appointment ASAP, and raise the issue of injunctive relief to prevent your brother from any further disposition of the assets, pending further legal action. Discuss the issue of suing him for fraud. There may be a criminal issue of larceny by conversion.

6. Your sister Patti's actions to assign her medical POA powers to Leonard isn't valid unless he is specifically named in the Living Will, Medical POA/other document which your mother signed. Patti cannot assign her authority.

7. It seems as though Leonard has also changed the terms of the trust. If you know this, then i assume you know the law firm which did the Restatement of the Living Trust? Contact the attorney who drafted the document and advise him/her of the situation. Add that you're obtaining legal counsel to reverse actions Leonard has taken.

Petrucelli, no offense, as I applaud your efforts to get legal advice, but I would never rely on online legal advice unless it's from an attorney you know. The "rent a lawyer" sites aren't going to provide anywhere near the level of advice you need.

There are attorneys affiliated with this site who actually practice and have offered advice, reliable advice. Contact the Admins through the "contact us" link at the bottom of these pages and ask if one can opine on your situation.

I just read what GardenArtist wrote. Excellent advice from her. I hope that you are able to get it straightened out if anything that was done was wrong.

Woe, Woe, Woe, I'm no Pollyanna 1st off, I have a whole host of dysfunctional family problemsthat I'm dealing with, thank you! I was asking direct questions, as I felt that you hadn't given us enough information to give helpful answers!

I sort of felt we got mixed information regarding that you were OK that your Mom's house was Sold, but not quite comfortable with the way he went about it. The there are 2 other siblings in the picture, whom you haven't given us clear picture on their concerns nor involvement. I honestly was only trying to help get a better understanding of the situation. That's what we do, since you reached out for help. It does no good calling people /ME names, thank you, Stacey B

Is there a reason why Patti asked Leonard to take in your mother instead of you or Donna?

It seems that now Patti can no longer resume care and she wants mom placed in a care facilty - is this accurate ?

Not to stereotype but most men are wired to solve problems -
Problem: mom's needs can't be met at home -
Solution: need POA in order to make decisions and access available assets to pay for long term care that she can afford

Now if Leonard has ulterior motives and thinks the government will pay for nursing home while he gains financially he will be disappointed with medicaid's look back period

If the three sisters believe a different facility is in your mother's best interest and price range then focus your energy on making that happen

Look up both facilities on the Medicare site and check ratings and complaints - men aren't apt to do this

My brother would have let the hospital send my mom to a nearby one star nursing home not because he was malicious but because it was easier than going around and checking the places out himself

Is your brother acting unreasonably ? I don't know but your mom needs the love and attention of all her children or at least one able to put her interests above sibling squabbling

Does your brother object to moving your mom to a facility of patti's choosing? If so do you know why? Do you all live nearby and share visiting hours or does it fall to one or two of you?

My sister hasn't seen my mom since last November - her opinion of my choices regarding mom bear no weight on any decision I make but I keep her informed

My brother will not visit my mom unless I force the issue but again I keep him informed

I have sole financial POA and in the event something happens to me both sister and brother have health care proxy - I'm in my 50s and work long hours - they're in their 70s and collect pensions - is it fair ? I'd say NO

Caring for an elderly parent is hard - caring for an elderly parent with dementia is hard - add in agitation and other health issues and limited financial resources and it is a nightmare

I'd call Adult Protective Services and report your brother for financial abuse of a vulnerable elder, if you think that's what this is.

Another question though, how is the nursing home being paid? With funds from mom's account? Was brother the person caring for her before all this occured? Do you think that mom shouldn't be in a nursing home? Are you going to be her caregiver?

All of these things are a bit cloudy to me. If she only has mild dementia, then she would still be competent to assign a POA. However, if she had only mild dementia, she wouldn't qualify to enter most nursing facilities unless she had other health problems. The events described would have happened over a period of months. I wondered what went on during this period of time that others were not aware of what was happening. The house is sold now, so it isn't something that can be undone.

Is there evidence that he has been using the money for personal gain? Or does he appear to be using it only for your mother's care? If you get the small home for your mother, who would provide the care?

thank you for the excellent advice from Garden Artist. I received an e-mail from a Elder Law Attorney today. He suggested a appt. for a phone interview. I decided the the on line attorney would be a bad idea. Before I go forward with this lawyer though, I want to try and find out what the Adult Protection Agency is planning. I can't really afford a lawyer, but will spend what I can to stop my brother, Leonard. I realized today today that he is probably getting her Soc. Sec. also into his bank account. My sister with the Medical executor said Mom's doctor of many years sent her a Medical report of active problems: anxiety disorder, mild cognitive impairment. The attorney, if there is one, did not talk to Mom, I think Leonard printed a form for a POA, and had Mom sign it. when you say Get on this quickly, as far as the sale of the house. Is it wise to call the realtor, I know Mom was running out of savings, at $4000 a month, she had little left for her care. She really needs this sale to go through, but the realtor did say there were a lot of hurdles to jump to get this sale through. Thank you all, Maureen

when I say HOME, I mean a small nursing home with 24/7 care. Maureen P

Maureen, perhaps I misunderstood, but I thought that you were unhappy with your brother's having listed the house for sale, not specifically b/c of the sale concept but b/c he's taken over.

You are legitimately concerned she'll run out of money. But apparently your brother has access to the bank accounts (although you're aware of the funds she has left). If you are familiar with how he's handling the bank accounts, are there improprieties there?

I'm a bit confused about how much information you have about your brother's activity, including the status of the house sale. You apparently want it to go through, but want to challenge your brother's authority.

If in fact he doesn't have legitimate authority, that needs to be addressed in conjunction with the sale, NOW. The realtor, title company and purchaser have a right to know. They rely on certain representations, and if he doesn't have the authority to make these representations, the premises for selling and closing could be false. This is not something to treat lightly.

Do you know what the specific "hurdles" are? This would help clarify the situation.