Can my brother, with POA over mom, spend her money on himself?

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My brother has a PoA over my mother, who was diagnosed with late onset of Alzheimer's prior to the PoA being signed by her. He also would not let me attend the meeting with the lawyer who provided the PoA. Over the past year, my brother has spent approximately $23,000 of her money on himself, for example, over $3,000 to fix the well at his weekend home, several thousand dollars for vacations, $1,500 a month in cash for my mother's "expenses", which he reimburses himself for separately as well, vet bills for his dogs, bottles of wine, dinners out, etc. He claims my mother consented to this. Can she consent after being diagnosed with Alzheimer's? Can he legally use her money to pay his bills even with her consent? He certainly does not have a financial hardship as he and his wife make approximately $200,000 a year. I've insisted he repay the money to my mother but he has refused. They live in Virginia. The Elder Abuse services said he is doing nothing wrong, but I disagree. If he is not legally wrong, he is certainly morally wrong. After I insisted he repay the money, he lawyered up and will no longer communicate with me or allow me to speak with my mother.

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I'm no legal expert but I imagine in your situation it would come down to documented diagnosis of your mother being legally incompetent - if this issue was attempted to be resolved in court or in any other formal capacity.

Being diagnosed with Alzheimer's doesn't necessarily make one instantly mentally incompetent- many people can continue to function in a relatively normal capacity for a time. It can be during this time when choices and decisions are made that aren't in the persons best interest but are not illegal. And this is likely what your brother would say if challenged legally.

So unless you have a ruling made by a judge or at a minimum a doctor saying your mother was not competent and you want to challenge decisions your mother made after the date of this determination- you are likely to be fighting a loosing battle. Bad choices aren't illegal and unfortunately neither is taking advantage of an elderly persons generosity when their thinking process is compromised - at least without proof of incompetenty. Certainly it's ethically and morally wrong but that is your brothers lacking, apparently.

If you want to put a stop to your brother, your best bet is to file for guardianship of your mother.
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"Once POA is activated this means that the patient is incompetent to make decisions. This therefore means that the patient cannot "consent" to gifts or payments for the POA or anyone else."

Not necessarily true. It depends on the type of POA. For example, you can have a limited POA which gives a person power under a very specific time frame (Military personnel do this all the time when they are deployed)

You can have a limited POA which allows someone to act under a very specific circumstance (my father could not physically go to settlement so he gave me POA to sell a house even though he was of very sound mind)

And then you can have a Durable POA which is in effect immediately even though the person is of sound mind.

I have had Mom's POA for decades because she never wanted to learn how to pay her bills or sign checks. She was of sound mind and she worked a full time secretarial job. She is now unable to make decisions but has never officially been declared unable to do so. Her POA language does not include and enactment clause.
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Angel, actually the power of attorney document becomes active when the language says it does. You don't have to be incompetent to have a power of attorney become active. Some attorneys draft power of attorney documents that permit the POA to gift assets etc. on behalf of the elder. This is fine if person has high ethical and moral standards, not so good otherwise:(
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Once POA is activated this means that the patient is incompetent to make decisions. This therefore means that the patient cannot "consent" to gifts or payments for the POA or anyone else.

The POA is legally required to only spend the funds of the patient on the patient and their care. This is strictly controlled. If you question where the funds have gone and can prove they did not go towards the patient care you can take this matter to court. He will be ordered to pay back the money. You can also request that the court remove him as POA and have the court appoint a guardian.

Does he have the money to pay back? That is the real question. Even if they order him to pay the money back, if he can't, then he can't. But having him removed would stop any further damage.

Another thing to consider is all of the money he has spent on himself is considered a gift. If the patient needs nursing home care and needs to apply for Medicaid because the funds are gone, Medicaid will do a five year lookback on the patient's accounts. Any money that was gifted will cause a penalty period for the patient during which time either the family must pay for the nursing home themselves or care for the patient at home.

Angel
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Tricky question.
If your mother has not been declared incompetent, which requires 2 doctors and a court hearing, she can legally do anything she wants with the money. With a power of attorney, if language was included by the lawyer that says POA can transfer to others, then legally he can spend the money as he wants. The red flag here would be not allowing you in the meeting with lawyer that resulted in power of attorney. If Elder Abuse Services says that he has not done anything wrong, that may be in the language of the POA.
The biggest issue here will arise should your mother ever need Medicaid to cover expenses at a nursing home. Medicaid will look at all items spent or given away for a five year "look-back" and will impose a "transfer penalty" on the person that needs the services an amount equal to the transfer. Nursing home is $230 per day; mother gave son $23,000 in gifts; transfer penalty is assessed for 100 days. Medicaid will not pay a dime for the 100 days. Your mother or brother at that point will have to find a way to come up with the money. Lawyers drafting power of attorney are frequently experts in elder care or probate avoidance but may completely lack experience in Medicaid.
Unfortunately, short of going to court and seeking a guardianship that would require that you prove his mistreatment of mother other than spending and lots of money spent on his own behalf, you've been told by the authorities that your brother is doing nothing wrong. You may have to stuff the feelings down to be able to talk with your mother and just realize that your brother will be on the hook later in life. The only need to bring it up further would be to ask if brother contacted an attorney expert in Medicaid and make it that you were concerned about that as a future difficulty that would interfere with getting care. Folks that will take money from a vulnerable elder are not prone to guilt. These boards are full of examples.
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In my opinion, he is definitely morally wrong. Legally, it may be a gray area depending on what stage of Alzheimer's she is in. A person who has just been diagnosed can most likely still make decisions for themselves and give consent. Sadly, morality is something a person has to deal with themselves, it is not a legally enforceable concept.

I would not give up before trying other avenues. Present your facts to someone else at Elder Abuse Services and see if you get a different answer. Talk to the prosecutor's office.

If she runs out of money all of those things that you mentioned will be considered gifts by Medicaid and will make her ineligible until it is either paid back or the penalty time has passed.
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