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

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?

Adult Protective Services came to the nursing home and talked with Mom, My sister, & me (over the phone) The worker said that the POA was invalid if my mother was diagnosed w/ dementia,(which she was before he put her in home) My sister, Donna, who was there did not tell me the conclusion of the visit. I hope to find out today. My sister, patti, was the person who had Medical Executor, but she had surgery on her leg, so she asked Leonard to take her until she could find a proper home for Mom. He didn't listen to her or Donna, and put her in a home. The financial is scary, but also the home he put her in is all women who are unresponsive. Which my mother is sociable, and has no mental stimulation being in with these women who are worse off than her. Patti, medical executor, wants her in a home that she found in Alpine. My brother is paying for the nursing home with my mother's funds. The house had to be sold to help pay these costs, but he had no right to change the banking accounts. I have also contacted the Chase bank where her accounts were, and they are doing an investigation. I believe a small home where Mom can be cared for is the way to go. Just not the home she is in. I am consulting lawyers on line. Maureen Thank you for responding.

If your mother is competent, which they often are when first diagnosed, she could discharge herself. Who then, will take her in to help with whatever is needed.

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.

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.

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?

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.

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.

BTW, I wouldn't just call the realtor; I would either sent a letter by certified mail or hand deliver it.

If your mother needs the money, she needs to have it w/o any rescission or potentially fraudulent actions.

OK, so you hire a lawyer. An UN challenged guardianship hearing takes a good six months. A challenged hearing will cost you 10K or more and completely tie up her assets, halt the sale of the house and your sisters Health Care Proxy (there is no such thing as a medical executor) for a year or so while the three of you battle in court. You see, the first thing the court does is throw you ALL out and appoint a Guardian Ad Litem who handles the medical and the estate until this is all settled. In many cases, the Judge ends up letting NO ONE in the family be a Guardian because they cannot agree. Think it over.

Are you uncomfortable speaking directly with your brother about his intentions on getting your Mother good care in a better facility? Do you honestly think that your brother is being shady with regards to your Mothers Monies, and the sale of her home? Can you not ask for a family meeting to discuss all of your concerns, to make this all above board? It seems like you are afraid to ask him about your many questions, while he may just be doing the best he can with limited involvement from the other siblings. I'm one of six, and we Never had a problem with the hard decisions regarding our parents. It seems like there is more to this post, like a dysfunctional family situation. I would go directly to the source, in this case, your brother!

Staceyb. Do you think i have a reasonable brother? No reasonable person would do this! Pollyanna

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 went back and reread your question plus All of the responses, including yours, and it seems I'm not the only one feeling confused ans asking for further information in order to try to help you!

Apparently the house was sold FHA, and he has to replace the roof & other repairs, which I hear he is doing. My mother stated in the second Living Trust that the house was to be sold as is. Her reasoning was, someone might move in and say they are repairing it while they live there. She did not want that. But that is in the second living trust that my brother is choosing to ignore. Mother paid extra to the lawyer to have Donna put on the Living Trust & to say the house is to be sold as is. I am not aware of the amount of funds she has, no one is except Leonard. He says he paid the nursing home in advance for two months, which he says was the last of her money. My mother is the owner of the house, not him. But with the POA he created, the money will go to him. The realtor should have had my mother sign the sale papers, not Leonard.Our main concern is to move Mom to a better home, and we can't do that as long as he has control of the money. Our second concern, is that when she passes, he will not follow the trust. Which is to share the money with four other siblings. He is crooked and has cheated family members before. I do plan to send a certified letter to the realtor, I also have to find a psychiatrist that will determine if my mother has dememtia, we know she does, but her doctor said it will hold more weight if it is done by a psychiatrist. The hurdles are the repairs to the house, I am assuming. FHA is very picky. He is spending a lot of money on fixing the house. I do not know where that money is coming from. We have access to a free lawyer, but the only ones who want to use this lawyer are me & Donna, but the lawyer said we have to be residents of San Diego, which we are not. I am going to try a find a relative who is a resident to work with this lawyer.

Sorry for the pollyanna, I do not live in san diego, live in CT. There are two brothers & three sisters. One brother does not want to be involved. the one sister has health problems, so she doesn't do much to help. We have already plead with Leonard to move her, he refuses. We could without his permission, but no one has the money needed, only him. Donna told Patti she would watch Mom in mom's home until we could find a nice place for her, then Donna left the state, and asked Leonard to watch her instead. Which he didn't want to do and put her in the home.
We believe Leonard is getting back at our mother for his childhood.Because there is no other reason to keep her where she is, the nicer place is less expensive. But we feel he is punishing his mother. thank you for all you advice, but I feel it is hard to understand the mess in a few words. My brother has alienated his one ally, my brother, Richard, saying to Richard "I am the only one with a brain in this whole family.!" Leonard said that to me on the phone when this all started.

Maureen
Something about your posts troubles me and I suspect others as well
As I understand your concern being on the east coast and trying to seek help
Perhaps take a break and come back tomorrow

Is Leonard the only sibling in San Diego who can help your mom? Richard won't and Patti can't and Donna who agreed to decided to leave town?

You say mom has no assets other than the house approx $300,000? Nursing homes are not cheap -$6,000 - $9,000 a month
What is your mom's age and overall health? Even with dementia she could outlast money from sale of house

If she doesn't need skilled nursing then look into residential board and care which are smaller homes with 6 or so residents and much cheaper than a facility if suitable for her age and needs

If you truly believe that Leonard is out to harm your mom then notify adult protective services - there should be a link on this site to the area agency for San Diego county