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The doctors say she is cognizant but does that have to be legally proven?

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You need a Notary Public. In some states, they are known as Constables.
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Reply to Llamalover47
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You probably don't NEED one but if there is anyone who could question spouse's ability to make decisions then it wouldn't hurt - cognizance doesn't have to be proven unless someone questions it at the time of signing & if any doubt the lawyer should do a quick test in their discussions that is not noticable -

You didn't say enough to help you further & it may depend where you live as laws change from place to place
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Reply to moecam
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It must be a DPOA for medical decisions. We didn't know that in 2012 when we recognized that Christy might become totally dependent.

What is the difference between POA and durable POA?
A general power of attorney ends on your death or incapacitation unless you rescind it before then. Durable. A durable power of attorney can be general or limited in scope, but it remains in effect after you become incapacitated

POA is only financial. Our attorney knew and put a definite clause in our form.

It saved us when the sleazy healthcare contractor tried to nullify my right and power as spouse because I was winning my arguments.

The clause is so small their legal snakes missed it. Had they spent as much time reading the contract as they did scrutinizing our document, there would have no argument.

This is copied from Christy's DPOA

ARTICLE V Purpose
My Agent shall have all powers as are necessary to provide my support. maintenance, health, emergencies and urgent necessities.

Our attorney also had us obtain a state ID for her. The signature on the card matches the signature on the DPOA.
That also saved us as she is no longer competent. The snakes tried to argue that she was not competent to assign authority. She could not sign DPOA in her condition.
They were depending on the state form that we also had to sign.
We silenced them by producing the one from when she was competent.
(Also, The snakes did not know or wanted to hide that spouse has priority rights unless there is legal contention and it is the spouse that has all rights to appoint another representative)


The document and a copy of her ID were simply notarized by a notary at a print shop. No great authority necessary. No state record. There just has to be that recognized person that can witness that she is and we are.

It took 4 years of battling the snakes but Christy now, since 2018, receives the Congress intended 24/7 168 hours per week attendant care to keep her home.
Because she needs 2 caregivers, I still have to be present, but I have help with the 'extraordinary care' duties, a choice to have times of being spouse rather than caregiver.

R9-28-101. General Definitions
“Natural Support Services” are services provided voluntarily
by a person not legally obligated to provide those services.
The services are specified in the service plan as described
under
R9-28-510 and cannot supplant other covered services.
“Extraordinary care” means care that exceeds the range
of activities that a spouse would ordinarily perform in the
household on behalf of the ALTCS member if the member
did not have a disability or chronic illness, and that is
necessary to ensure the health and welfare of the member
and avoid institutionalization.
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Reply to EllerySir
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You need a notary. Lawyer review would be preferred. I was a notary; I worked for lawyer for 35 years. Be careful what you do without attorney.
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Reply to peggyexton
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You should get the POA done as soon as possible while she is still ok to sign. Taking her to a lawyer would be a good idea but maybe not necessary. However that said I made a mistake that I would not want anybody else to make. My mother's lawyer was the executor of her estate but didn't want to do anymore when he found out she was moving to Florida. So he gave me all the paperwork, and I signed something that said I received it. Deciding she needed an executor I found a form in a library book, copied it, and followed the instructed and had a notary sign it. Although I had everything right, I didn't have where my Mother and the witnesses sign in the right place on the form (middle of form, end of form). This is a Florida quark. The form was invalid and would have to be argued in court. Also when the bank officer saw it she was alarmed and would not give me the remaining money in my mother's account. It was under 10,000 and she had promised to give it to me with a signed paid funeral bill. Seeing the signed executor paper she assumed there was more to probate (there wasn't) than the bank account and refused to give me the money. The story to be learned here is to get a lawyer from the right state for these kinds of papers. I would have been better off not making that executor paper than not making it Florida ready. But who knew? I am now waiting the 3 years for it to go into Unclaimed Funds. A new problem has cropped up. My sister had a bad stroke and is in a nursing home on Medicaid (paralyzed). I handle her finances but am not her POA. She can't have anymore than 2000 income in her checking account. Her share of my mother's money would put her over. I would have to leave her share in Unclaimed Funds until after she dies plus Florida's waiting time. This is all my fault. But I promised everybody I would eventually make everything alright. Lucky for me, everybody is being patient and just happy somebody is handling it.
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Reply to snowquail
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Myownlife Aug 12, 2019
Ah, so sorry for the trouble you are going through!

Just wanted to say, that I, too, live in Florida, and the banks where my mother's money is BOTH require their own signed documentation for me to act as my mother's POA "for THEIR banks". The attorney-prepared and signed (by my mother with witnesses) DPOA is not accepted by either of the banks. And honestly, for anyone who it works for, my mom has listed me joint on her accounts, so that there is absolutely no trouble.

And other advice, for anyone who does not want their money/property to go into probate, thus requiring going to court, SEE an elder attorney and spend the money to have a trust drawn up. I am fairly certain I am far from alone in not wanting to have to go to court for probate.... my life is super busy, and that is the last thing I would want. Luckily my mother agrees with me and we will be seeing her attorney soon to do just that.
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A person has to have legal capacity to sign legal documents. As an attorney, I would want a doctor to evaluate capacity (and sign a statement of his or her findings) before your spouse signed anything if there is even a question about her mental capacity. Cognizant is not necessarily competent. That said, the power of attorney should be notarized and have a non-related, over 18 witness as well (or two witnesses - not related). That would not necessarily require an attorney, but having an attorney draft the power of attorney is a good idea. If anyone challenged the power of attorney (if this was in doubt), you would need evidence of mental capacity (thus the need for a doctor's written evaluation).
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Reply to azlegacylawyer
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Myownlife Aug 12, 2019
As far as I understand here in Florida where I live as well, unless there is a "Certificate of Incapacity" signed by a doc, a person is considered to be able to make decisions.
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If she knows what the POA is for & signs, you just need 2 witnesses not related & a notary to witness all signatures.
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Reply to Lostinva
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Rabbithunter Aug 12, 2019
This information is correct.....at least in Hawaii. My husband has dementia and I called our attorney. He advised me on which POA to download and asked me if my husband could walk, talk and sign his name. When I said yes, he told me to fill the form out and go to a notary.....so done.....and boy, has that POA been more necessary than I imagined. Good luck.
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The hospital should have a social worker or an administrator who has done this before. At the very least, get 2 witnesses who are not related to you.
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Reply to Bigsister7
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AlvaDeer Aug 12, 2019
In general in California at least, hospital personnel are not allowed to witness. They may guide you to notary who will actually visit the hospital, however.
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I am an attorney, licensed in Indiana. You should consult with an attorney in your state, as each state has very different laws.

That said, I'd also recommend searching Legal Zoom or other online sources that give you access to forms and general legal advice. They have charts that provide a lot of information by state. Generally, you must have a notary witness your signature; but a good elder lawyer is the one who advises you on so many other things and is a strong ally throughout the aging process.

Also, having the doctor "say" that someone is cognizant is great; even better is for the doctor to complete the state's form that is an advanced directive/living will declaration. In Indiana, when we were in the process of choosing an assisted living facility, they required us to have the Indiana form filled out by my mom's physician.

Finally, as you go through this process, it is wonderful to put together a file box with her insurance policies, medical information, copies of POAs, copies of her SS card, Medicare card, other health and life policy numbers and contacts, financial data, bank statements, funeral directives and the like. AND, if your mother is computer savvy, or has any passwords, get that information as well.

Finally, a story related to the password issue:

My husband's dear sister was a writer, working on a new book about Abraham Lincoln and one of her ancestors who was a close friend of Lincoln's. In her mid-70s, very healthy, we thought, and much beloved. On Mother's Day this year, she suddenly contracted encephalitis, went into a coma, and never really came back before dying. Her husband is heart-broken. But his grief is augmented by the fact that her computer is locked and he cannot access the information on it -- and her book was nearly finished, she had told him.

I know it's a bit off-topic, but I hope that we who are caretakers take care of ourselves -- and also "take care" to ease the jobs of those who care for us in our last days.
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Reply to BethandDan
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Ellie9068 Aug 16, 2019
Don't give up hope on accessing the computer file for the book. I used to be a computer programmer and there are many ways to bypass things. I'm not that tech savvy with the current computer knowledge but if you took it to a computer place or found a young geek that loves computers I bet they could access the file for you. Make sure they make a copy of it first just in case they corrupt it trying to access it. Good Luck. Lauralee
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I'm sure it depends on the state. But since people usually have the attorney prepare the POA, wills and any other legal documents, the attorney will probably be there anyway. Unless you are using something like Legal Zoom, or getting a template to prepare yourself, the attorney usually has staff to act as witnesses. And my understanding is they are just witnessing that you are who you say you are and that you signed the document. They are not witnessing that anyone is cognizant. So if the doctor has not diagnosed her with a cognitive impairment, any legal document signed before any such diagnosis was made, should be legal.
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Reply to Kathy4177
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Something like POA you had better get it done RIGHT, which means seeing an attorney. Do not use online forms or other do-it-yourself means. If it is not done right, and they lose their cognition and the POA challenged it will require a court order to appoint someone. It will cost a lot more and with a considerable amount of hassle. A bank, for example, may challenge its authenticity or wording.
" A power of attorney is accepted in all states, but the rules and requirements differ from state to state" https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/power_of_attorney/
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Reply to cetude
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BettyMG Aug 14, 2019
Im poa for a relative. He wants me to write checks on occasion from his account because he has trouble writing. Went to his bank with the POA and found out it won't be honored without statements from 2 doctors because his account in in a trust.
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When my wife and I signed POA's a few years ago we did it in an attorney's office, but the one who witnessed the signatures was a notary and unknown to us, who happened to be the attorney's secretary. The notary is the one who signs and seals the documents, so I would say you don't need an attorney for what you want to do; possibly there is a notary on the hospital staff that would oblige. Notaries might charge a small fee for their services, but an attorney's fee would be much more. If you are unknown to the notary she or he might ask for ID,s
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Reply to PungoMac
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In CT you need 2 witnesses and a notary but none of them has to be an attorney, though that is often the easiest place to find the collection of people you need. Hospitals usually have a notary available as well if you happen to be doing this through a hospital stay.
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Reply to Lymie61
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If she is cognizant, then she has to agree to give POA. If she agrees, then you need witnesses to show that she signed willingly.
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Reply to Marshhen
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Here in Florida, we often run into issues with POA , health proxy, wills, and trusts. Each state regulates their own requirements for these documents. In Florida, our medical teams can only honor those documents that meet Florida law.

This means that our snowbirds have to have at least two witnesses on their documentation. They show up all the time with papers from their states and we cannot act on their wishes. It's a nightmare when we have an emergency and the designated health surrogate cannot speak for the patient. We must act according to our standards and disregard the health surrogate wishes.

If you or your loved ones are coming to Florida for an length of time, make sure your get Florida statute into all your documents.
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Reply to SuzanneFLORIDA
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cetude Aug 12, 2019
POA ends at time of death; however, one will need a POA for estate planning and the elimination of probate--this will require an eldercare attorney for that sort of planning. As long as nothing goes into probate, issues like Medicaid seizing assets will no longer be a problem, as with the Estate Recovery law. POA laws vary in each state so it is best to be done with an attorney.
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I ould suggest if there is something you Both don't or may Not understand, Have one handy. If all is well and it seems Everyone is on the Same page, Not necessary but will Need a Witness, And even a Notary.
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Reply to Parise
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That all depends on what medications your spouse is being given. Medications, especially pain meds, alter the level of consciousness. Having anyone sign a POA while they are in the hospital may be considered a red flag. What exactly is your spouse in the hospital for????
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Reply to NYDaughterInLaw
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Geaton777 Aug 8, 2019
In MN the hospitals provide their own notaries for this exact purpose. But i think if there's any doubt about her mental state, having an attorney present could alleviate that concern. Being on medications while signing may be a concern but I guess that's where a lawyer comes in.
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Doctor saying that it is legal. You do not need an attorney.

Do you believe that she isn't cognizant enough to sign a POA?

If this is so you can help her then by all means have the hospital handle the notary and witnessing of her signature. I did that with my dad and it is completely legal.
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Reply to Isthisrealyreal
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We had a legal POA for financial and Trustee of Trust drawn by a Lawyer. The lawyer had it signed by my brother after interviewing him alone to be certain this was his wishes. The attorney was the Notary Public. It has passed muster in all banks and etc so far.
In my state hospitals do not allow any employee, even social workers, to act as witness.
This is for financial, or for health or for both? There is also a need to my mind for the POA to continue when the person is NOT any longer cognizant, so I wanted to be certain that language was in there, as my brother diagnosed with a possible early Lewy's dementia, and his condition will deteriorate over time. I felt much safer that we went through an attorney. It wasn't cheap but it's done correctly I think, our main concern.
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Reply to AlvaDeer
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In NEW YORK two witnesses that are not knowing of either side a lawyer. and The POA could not be present WHILE PAPERS WERE Signed in case of coherse ...
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Reply to Lorraine12
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In Florida 2 witnesses are required, an attorney does not need to be present.
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Reply to DollyMe
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The answer is probably no, but check your state law. In my state, an attorney doesn't need to help write the document or be present when it is signed, but there must be witnesses to the signing and there are restrictions on who can be witnesses. If this is for a health-care POA, the hospital probably has someone on staff who can help make sure you're doing the process correctly.
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