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Does anyone know when and how a durable POA kicks in? I feel like I am seeing conflicting info on this site due to my lack of understanding.


On one hand, I read that even people with dementia have rights and are free to make their own "bad decisions" such as checking out of a care home.


On the other hand I've seen many stories where a loved one was forced or tricked into a care home against their will and staff tells family they need to adjust while the person is saying they don't want to be there.


Can anyone clarify this? I have DPOA with my mother who is VERY stubborn and bordering on paranoia now and I just want to know what's in store for me as she continues to make bad decisions.

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"They can be so darn stubborn. There is nothing you can do unless something happens to them. Absolutely nothing!! The law is on her side!!" Then the only reasonable thing we as caregivers can do is to stop helping them manipulate us into enabling them to manipulate us. Does that make sense?

Maybe we are the ones who need to accept that we can do nothing until something happens. Perhaps we are the ones who are delusional by trying to prevent something bad from happening. I learned acceptance by stopping enabling "them" to live alone i.e. stop doing chores, stop running errands, stop driving them to appointments, etc. For 5+ years I enabled my inlaws to live alone and, if I could go back in time, I would not do it again. I prolonged their decline, delayed the inevitable and, when they finally moved to indy living, they were worse off than their peers who accepted things sooner.
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MountainMoose Oct 2, 2019
Awesome perspective, NYDIL!
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Who drew up the DPOA? I would suggest you ask them, or see if it is in the document.

As this is an International Forum, and even within a country laws may vary by state or province, it is important to get 'official' information as it applies to your situation.
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ExhaustedPiper Oct 1, 2019
Thanks. A lawyer in Florida USA drew it up, and it appears to be pretty standard. My mom had that done in 2014 after she had a stroke.

I thought about calling the lawyer, but I'm afraid if it got back to my mom she might revoke the POA. She's already very on guard with me because we went through a HUGE nightmare battle over her driving this past summer (which she ultimately won).

I should probably call an elder attorney here in FL, I was just hoping someone might know.
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Read the POA. Some will say immediately and others will say "when no longer can make informed decisions".

I don't see why the lawyer who drew up the POA would tell your Mom. I think before you do that, Mom needs an evaluation with a neurologist. Also, a good physical with her PCP. You could tell a little white lie and say Medicare requires it. When you get a diagnosis, you can go from there. A doctor can contact the DMV and have Moms license revolked. I am sure my MIL went thru somekind of testing with the DMV when she reached a certain age.

Once a POA kicks in its because a person no longer can make informed decisions. So that person cannot leave a facility on their own. The POA is there to keep them safe and carry out their wishes within reason. If their wishes were to stay in their home but thats just not possible, the POA makes that decision.
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ExhaustedPiper Oct 1, 2019
Hi Joann,

All that's been done. She was diagnosed last Spring after a neuro-psych evaluation that was ordered by her neurologist. The state of FL revoked her license after the doctor reported it. See my reply to NYDIL.

I just want to have the correct knowledge as I can tell my mom's condition has progressed and I can't reason with her. She's at a very defensive and now secretive stage.

She gets back Sunday. Looks like I should probably ask a FL elder attorney.
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Exhausted piper I feel for you. I really do. I have durable POA that clearly states when she becomes incompetent and can’t make decisions. I do have the paperwork in my hands but the attorney was Leary to give it to me because she is competent and of sound mind. He called my mother and said it was ok for her to give it to me. He was Leary because he said technically I had the power to sell her house right out from under her. I won’t and I told him I would never do that. The reason I have it is so I can talk to healcare professionals over the phone and I can do banking business on her behalf. As far as driving my mother got in an accident 10 years ago at age 85. Nothing serious just a fender bender but the cops were called and it was her fault. Long story short they made her take the road test again to see if she could drive. Guess what, I was in the backseat and she talked her way out of taking the road test!! They gave her the license and she never took the road test!! She just talked her way out of it. The driver turned to me and said your moms mind is better than yours and mine combined!!! She is good at smoozing. Fast forward to 3 years ago her card died when she was 92 because the car was 20 years old!!! Her car died I meant to say. So I feel for you. I am sorry you are going through all of this!!! They can be so darn stubborn. There is nothing you can do unless something happens to them. Absolutely nothing!! The law is on her side!!! I am so sorry.
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Teddiegough Oct 3, 2019
Your answer does not make sense. A medical POA and a durable (financial) POA are entirely different documents and covered under different state statutes.
A medical POA only "kicks in" when the principal (the parent) becomes incompetent (under state case law usually meaning unable to communicate).
The Durable (financial) POA "kicks in) when the document is signed by the principal (the parent).
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I have I have an answer that apparently no one wants to broach, because no one has. But if a dementia victim has a DPOA or a springing POA and they are cooperative with you, your life can be great.

But if they are stubborn, and capable enough to make your life hell, your only option is a conservatorship or guardianship, whatever it's called in your state. It's usually separated into two portions: one of the person and one of the finances.

And, and, you have to go to court to get it. And, it's very expensive. And, if there is an estate involved, it drains the funds because the court will typically rubber-stamp the attorneys fees etc etc. IOW, It's relatively easy to get a conservatorship of person when there aren't finances. If there are finances, there is voluminous receipt keeping and record reporting to the court - - so it's a major stressor on the conservator.

Now, and in your situation, it could be good news. Your mom seems partially cognitive. If you explain to her that she either cooperates with you under her DPOA or you walk away and go to court and get a conservatorship. And you know you will MOST LIKELY get it. because of the doctor that evaluated her for her Florida driver's license, and probably her personal physician as well.

And in the attempt to get a conservatorship, if the dementia victim, is able to vocally object, the court will appoint a lawyer for that person, which is paid for out of that person's funds, if they have money, and the court will also generally a point a neuropsych under the court's authority to do the evaluation. The court has a list of lawyers, doctors and psychiatrists that are typically termed "Friends of the Court" - - professionals whom the court has prior experience with, and whom the court trust to give an impartial evaluation, not having anything to do with family dynamics.

When when I say tell your mom this and walk away - - I reallt MEAN walk away and go file. I know it seems harsh, and it's sometimes fearful to think that you're leaving them on their own, but you don't really have a choice at this point. See an elder attorney. You will undoubtedly need to see a different one from the one who drew up the DPOA, as that one would probably not ethically do it because of conflict of interest. You will PROBABLY prevail and when you do, the attorneys fees will come out of your mom's estate if there is money, and it will usually come from the state if there isn't money. There may be some expense to you if you don't prevail, so you should definitely discuss those questions with the attorney.

It'ss an ugly process - - the dementia victim is stripped of their rights in open court - - driving, voting, any independent decisions, medical choice, etc etc.

Your mom may still be in a place where she can cognitively understand what that would put the both of you through, and perhaps she would relent and let you use your DPOA the way she set it up when she was thinking straight - - the way you're supposed to be able to.

But truly you don't have much choice in order to keep her safe - - sometimes Adult Protective Services gets involved and actually blames the supposed caretaker for not doing the right thing. This process is also often undertaken when there are two family members doing the caretaking who don't agree - - often the court steps in and hands it over to an outside service who does this type of process. That can even happen when there's only one child trying for the conservatorship and the dementia victim is overridingly hostile about it. The problem with that is that it's very expensive and that court appointee also has the power to completely exclude the family from knowing anything about the patient.

This is a hard time for you and your mom and I feel very bad for your situation. In case you can't tell, I've been there, done that and it's a very unpleasant - - if your mom is cognitive enough, your hope is that she will understand and cooperate with you - - else you go to court.
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AlvaDeer Oct 3, 2019
Your advice and experience is so valuable here. My beloved bro is diagnosed with early Lewy's. Both HE and I hope he will die before it becomes bad.It and a benign brain tumor have ruined his balance but his mind, without anxiety is amazingly sound. It is my BROTHER who has appointed me POA and Trustee of Trust now and for a future in which there may be mental changes. He has entered assisted living. We are of an age, mid 80s for him and late 70s for me. And I often thing of the "what ifs" because there is not other family save a niece with her own problems. There are times when we cannot/should not attempt to take care of everything, where trying to do so will be impossible, or will consume our lives.
I think only one thing I would add, is that while the State taking over the management of care is in some ways good it can take away any control over placement, where and what facility, and etc.
Hoping this OP will seek out at least an hour of time with an Elder Attorney. Just wanted to let you know CarolLynn, how valuable I think your answer is on this forum, and wonderful I think it is you would take all the sharing, time and thought for.
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OK, let's not go to "everyone else" and "advice on the forum that conflicts". Because you need not to take the advice you see here from ANY of us. Most of us are lay people involved in caring for our family members in one wise or another. We have learned a few tricks that work, a few things that might or might not be true about POA and about Medicare and Medicaid and so on. But we are not experts.
So let's keep this about you and not about other stories here. You have a mom you describe as VERY stubborn and as bordering on paranoia. Stubborness is not dementia (though sometime one symptom of a dementia may be stubbornness that was not previously there. Paranoia can also be a symptom, but you aren't paranoid if you are thinking someone wants control over your decisions, and is saying POA. Because maybe they do. So the thing is here that you have not described in my book someone who has dementia, is therefore a danger to herself or others from wandering, forgetfulness, turning on the gas jets and causing fires, and et al.
The best thing you can do if you are DPOA is take the person you love and potentially must act for to evaluation. You will there learn IF there is dementia, what stage, when you should act, and etc.
Bad decisions are something we can make at any age. But the kind of bad decisions that end us wandering in the streets lost, or giving all our money to scams, those decisions need intervention.
Your task now is to find out what is happening to your Mom. Don't take OUR advice. Take the advice of professionals and then come back here and try to tell us what you have learned, what symptoms you saw, what they were diagnosed as, and etc.
Ask Mom's doctor, after evaluation, what other papers you need, and at what point you must become appointed her POA or her guardian. Buy one hour of time with an Elder Law Attorney. They are the experts.
Then come here to the garden of advice, pull weeds, plant flowers, try to get help and give help--more than anything receive the comfort of knowing you are not alone in your confusion. Wishing you so much luck. Hoping you will update us on all you learn. Knowledge is our friend, but we have to comb out the tangles. It is terribly tough. For us all.
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GardenArtist Oct 3, 2019
"garden of advice"  - love it!
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Piper, w/o skimming through all the other answers, can you provide the specific wording on enablement and actuation from the POA document?   That's the determining factor.
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Teddiegough Oct 3, 2019
My understanding is that for a medical POA, under Texas statutes, the agent (yourself) cannot make decisions for the principal (the parent) until the parent cannot make decisions for themselves (under case law---cannot communicate). This is all under Texas statute and the statutes for medical POAs are entirely different from the statutes for financial POAs. And, it is my understanding, that the only way to change this legally is to have a court appoint a guardian. Period!)
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It comes down to a matter of "competency". If an individual is not mentally or physically able to care for themselves, then he/she needs their care to provided for. The law in your state and doctors that are licensed in your state have a definition of what "competency" and lack of competency mean. No one should step in to determine another's care/life if he/she is able to make those decisions for himself/herself. Ask your doctor or a family law lawyer what the definition is for your community.

The "how care is provided and decided upon" is also important. It is preferable that every person determines how he/she wants to be cared for in case he/she can't express wishes. The law provides for this in living will and DNR to write out your requests. The law also provides for a "proxy decision-maker" when somebody gives a "power of attorney" (POA) to another person. In elder law, usually that refers to a medical POA and a financial POA - most financial institutions require the financial POA and won't respect a general all-encompassing POA. POAs can only be given if the older person in mentally competent to make that decision. If not, a person who wishes to accept responsibility for all care decisions will need to go to court to get "legal guardianship" which can be expensive. Otherwise, the court can appoint somebody - usually a lawyer type - to be the decision maker.

Then comes the gray area of self determination. Most states consider neglect to be against the law, including self-neglect. So a person who might be considered mentally capable might be forced into a facility if he/she neglects his/her own health needs: bathing, food, medication, home care...

If your mom is making poor decisions and is paranoid, I suggest your first step would be an evaluation by a medical doctor. Go with your mom and give the doctor a list of problem behaviors that you are concerned about. He/she will be able to advise you regarding treatment options for her medical conditions. If she is not "competent" to handle finances, help your mom set up her finances for auto pay of bills and review them online, especially with her. You might consider giving her a reloadable debit card for her personal use instead of being able to dip into every bank account. That way she has money to spend and her finances are cared for.

If she is not "competent" to live alone, then you'll need to arrange to have somebody with her - round the clock. It could be you, family, friends, people you trust, or paid help: aides in the home, adult day care programs, and/or moving to a residential facility. There is no 1 right answer, but there are usually plenty of resources to get help from. Start researching for help where you/she lives.
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AlvaDeer Oct 3, 2019
Gold Trophy answer!
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You must read the POA, Piper, no matter what type of POA it is. That document will state if you need one or two doctors to attest to her incompetency or something else entirely. You state you're DPOA you must have a copy of it.

Look for "Effective Date" or some paragraph like that.
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I am in Ontario Canada. We had a heck of a time getting my dad in a nursing home against his will. For at least 2 years we were struggling with this. Dad was diagnosed with dementia, but was not deemed totally incompetent. They told us he had trouble making decisions, but no doctor wanted to deem him incompetent. Finally, after several falls and several ambulances which he refused, one ambulance attendant decided that for the interm, the POA would take over. They took him to the hospital on my mom's say so not his. When he got to the hospital, the doctors did a compentancy test. At that point, they decided that he is not capable of making his own decisions and the POA was to take over. At the time, the POA was my mom. Mom is gone now and I am the POA. So my advice to you ExhaustedPiper, is persistance. Keep on the doctors. Keep a record of everything out of the ordinary. Call an ambulance every time your mother falls. I won't say it is easy. It's not. Just make sure everything is on record.
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