Where is the "line" as far a capacity to sign for DPOA?

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Hi all! My husband and I are the caregivers for his elderly aunt (who never married and had no children). Unfortunately, we're now at the point where she requires more care than we're able to provide by stopping in a few times a week and managing her care--it's time for assisted living. I don't think it's going to be a problem convincing her to go, it just takes time and careful planning. But in order to facilitate that, we really need my husband to become her POA (in order to meet with financial planners on her behalf, deposit all the random checks she's had sitting around for months, generally handle her finances). She WANTS my husband to be her POA, and she had wanted to make some changes to her will at the same time (I believe her initial will was written before all her nieces and nephews came into play). The will is off-topic a bit, but I bring it up because when my husband took her to her initial appointment with the attorney, she told them she wanted to make my husband her sole beneficiary. That's fine--honestly, there is unlikely to be any money left after her care needs. Unfortunately, because of one thing or another, my husband didn't get her back to the attorney to sign the paperwork promptly enough, and now he (the attorney) is saying he no longer believes she's capable of signing and is recommending we go through the long road of obtaining guardianship.

She recognizes my husband, knows who he is and how they are related. She expresses a desire for him to be her POA. She knows who she is, where she lives, who other family members are (although she doesn't see them, because frankly they can't seem to be bothered to drive the 45 minutes to visit). The attorney's concerns were based on him expecting her to call to confirm their appointment, which she apparently did several times at my husband's request, each time saying "I don't know why I'm calling you..."

So, essentially, she has some problems with short-term memory (which is why it's so important to us that she be in assisted living where she will be safe). Based on the research I've done, I'm sort of unclear on why the attorney wouldn't complete the POA for us. Can anyone who's been in this type of situation clarify exactly what is required of elderly people in order to designate someone to act as their POA? Thanks so much!

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It's not over after the guardian is appointed, which requires an attorney, psychologist, and a social worker. You will have to attend classes and regularly report to the court via an attorney as to how your mom's income is being used, which can be costly. Ask your attorney how much that will cost too.
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Just want to add my 'yes' vote to 'get another attorney' and as soon as you can. And checking with the local university is another great idea. Good luck and God bless
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It seems to me that the attorney has found a way to "upsell" you. I would find another attorney.
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my niece was give Durable POA for my brother. my brother recently married and the POA stayed the same. now he has expired. did her POA expire, and what rights does the wife have at this point
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It sounds like the attorney misread the situation. If he/she is still unwilling to allow your mother to sign the POA under the circumstances I wouldn't hesitate to find another attorney ........right away!
Seeking guardianship is a much more complicated process. In order to apple for guardianship the court would have to make the determination of her legal competence which could involve her being questioned herself, etc. Should you need to seek guardianship at some point in the future, if your husband is already the appointed POA, the process is less complicated.
As your mother ages and her health declined you may find that you need the advice of an attorney about a number of things and that person needs to be someone who will take the time and attention to listen to you provide you with a single resolution or more than one to choose from. I'm afraid tha attorney who refused to allow your mother to sign also gave you a good glimpse into how he relates to his clients. For purposes of creating and signing both a DPOA and a HCPOA, there may be an ElderLaw clinic where you live or a university law school that has its own clinic where third year students do their internships. Good luck.......
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She missed an appointment and now the attorney thinks she's incompetent? I understand she had to call and confirm the appointment and many elderly people don't know what they're doing when they get on the phone but that doesn't make her incompetent.

Going through the legal process of guardianship cost my neighbor $7,800. You'd be better off finding another attorney.
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The aunt's capacity to understand the POA implications and process should be assessed only at the time of signing.

When I took my elderly mother to the local legal aid office to sign her will, DPOA and medical POA, the attorney took her aside. Even at that time, Mom was forgetful. But the attorney briefly met with her alone to be sure Mom knew what she was doing. The fact that Mom might not have remembered the conversation later isn't relevant.

This is an important distinction and separate from the memory issue.

Mom knew who I was and what the papers said at the time. However, she no longer is capable of that level of functioning. So don't waste any time in getting a new attorney, perhaps one who is experienced with the issues of aging.

Good luck and God bless.
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Forgetfulness as you describe above is not the same thing as incompetent to make those decisions, so I would seek the advice of another lawyer. But it can lead to dementia eventually, and so you shouldn't wait too long to get the POA. However, did not know the differences between that and guardianship that Pam stated above, so that is definitely something to consider. And again, don't wait too long. If some major health event happens to her, it is much less stressful to have already had all that taken care of ahead of time.
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The attorney is acting within the ethics of his profession. He will defer to the Judge and the court appointed psychiatrist, and likely your husband will end up the Guardian. This actually gives him greater authority than a POA.
Let's say a few months after going into assisted living, she demands to "go home" as many dementia patients do. She can't leave if the Guardian has placed her there. Let's say the nieces and nephews try to remove her to their place. They can't without the Guardian's permission. Ultimately she is safer with a Guardian. She cannot revoke the Guardian in a moment of anger. She CAN revoke a POA anytime she wants, and many elders are swayed by competing family members. Guardians are appointed by a Judge and only by the Judge. It takes longer, it costs more, but it is the best method.
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