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My brother and I share DPOA for my father. I noticed the verbiage states it will go into effect upon declaration of incompetence. What does that really mean?


How ‘incompetent’ does one have to be? Are we talking bed-ridden and incapacitated? Are we talking about general lack of ability to make financial decisions? I’m sure this is a lawyer-type question, but I’m certain someone “out there” has some insight.


My interest is because my brother and I would like to purchase a small, VERY modest residence using trust funds so I can relocate w/my husband and continue the 24/7 care I provide. (Husband is 300 miles away....) is this possible?? Renting seems such an enormous money pit, buying w/intention to resell after use just seems more logical in order to preserve dad’s money. Thoughts?

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Read the POA it should state that the POA will kick in when 1 or 2 doctors declare that the individual is unable to make medical/financial decisions on their own. If it does not specify 1 or 2 my understanding is that it defaults to 2.

Some individuals who have had the POA's drawn up by an attorney may have the document written so that the authority to act is immediate. Again, check the document to see what triggers the authority.

Also just because a person has poor judgement it does not mean they are incompetent. We all can make poor decisions.
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Reply to cjwilson
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IF the document (DPOA) does not specify what "incompetent" means, legal advice would be best and would likely require at least one appropriate doctor, perhaps two, to declare him mentally incompetent.

Although you did post what his condition is, I will say that If one is physically impaired, but still mentally competent, then one could likely use medical POA to help assist with medical care and be allowed to discuss condition and treatment. In this case, I would have to say no, DPOA for financial concerns would not take effect yet.

In your case, it is questionable. We had already done the MPOA/DPOA/transfer of condo from joint to just mom when dad was declining. Many years later, when she was showing signs of dementia (short term memory going!), we had to do some over. The attorney managed to get her to understand enough that we proceeded. She was still okay to be on her own for a while, but shortly thereafter I took over her bills and payments as she was making mistakes, using the DPOA (ours doesn't specifically say anything.) We were joint on her account already, but used the DPOA to help wherever needed (most bills the address change was easy - they don't care where they send the bills so long as they get paid!)

One thing that was done during the second round was to put the condo under life estate (upon death, all remaining trust funds and the condo would revert to the trustees - no probate court required.) This was fine, except that when we really had to find a MC place, selling it while she is still alive was complicated and would require some expensive cap gains! The flip side is things were going bad (heating system, glass, etc) and just taxes plus condo fees were costing 14k/year! So we sold it after fixing everything and now have to figure out all the cap gains! YUCK!

IF an attorney could agree that dad is competent, you *might* be able to buy using the trust and KEEP the place under trust for him. LEGAL advice would be best because every state has different rules for competence, use of the funds, and putting the home under trust for dad. Absolutely do not buy in your name! As others noted, that is considered gifting, so there would be tax consequences AND it could impede Medicaid if you ever need that!

Usually attorneys will give you a one hour consult for free - just draw up any and all questions you have ahead of time to make the best use of the hour! If possible, use the attorney who drew it up (if not Elder Care, it might be better to go to one who is instead.) Also explain his condition (can certainly relate to agree or understand one minute and not the next! FUN stuff!!! not.)
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Reply to disgustedtoo
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If he is "far from" incompetent now, perhaps an attorney will advise you as to whether you can be added on as a co-trustee, which would smooth the transition regardless when he DOES become incompetent.
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Reply to Maryjann
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I'm feeling very fatigued now too! - just been trawling through California .gov websites looking for instructions. Phew! Keen on the Caps Lock in the legislature, aren't they?!

Anyway. Didn't find what I was looking for exactly, but there were some points of interest which lead me to think that most of what you want to know *should* be explained in the DPOA document itself.

Several pro formas, for example, do specify the right to buy and sell real estate on the principal's behalf - does yours?

They are very very hot on attorneys not profiting in any way, on pain of death, pretty much (I exaggerate slightly); so anything you do must be of demonstrable benefit to your father. Substantial savings in care costs could be of benefit to your father, of course; but you would need to have all the numbers down in black and white and be able to prove same.

All of the information I could find about declarations of mental incapacity related to conservatorship applications in court, so that's no good. Are there no instructions or notes or guidance in your documents? If the work was done by an attorney, is there someone you could just call up and ask?
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Reply to Countrymouse
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I’m feeling very fatigued...I wasn’t clear, sorry. My dad has Lewy Body Dementia. Those of you with experience understand that a positive conversation one minute, may not be so positive the next. What he sees as acceptable one minute, could be unacceptable the next.
The goal is to have my husband (who presently is behind in No Ca) join me here, and will participate in my fathers’ care. A night person will be hired, so I could retreat to a separate residence @ night. I am now giving 24/7 care, but hope to whittle that down to 12/7. Renting seems like tossing money to the wind, buying (meager) seems at least to be an investment/ securing of funds. Maybe just succumbing to renting will have to do.
Im not interested in conservatorship, dad is far from that at this point. I was just wondering if there was a certain criteria that must be met in order for DPOA to go into effect.
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Reply to Longhaul
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Like others, I'm no attorney. But my understanding, at least for my state, is you have to get your doctor (maybe even a neurologist) certify him. That might involve having an EEG or an MRI to show areas of the brain that have "shrunken" or other physical manifestations. Then a court has to declare a conservatorship.
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disgustedtoo Dec 8, 2018
DPOA and conservatorship are two different animals.

Having DPOA allows one to avoid court costs and hassles to get guardianship and conservatorship (one for care, including medical, the other for financial concerns.)

If the person in question is clinically determined to be incompetent mentally, DPOA can more that likely be used - ask the attorney who drew up the documents (or another Elder Care attorney if the original is no longer available.) Some are "springing" which is slightly different and comes into effect when deemed incompetent. Not sure how this differs from a non-springing one.

Best to consult legal advice if there is/are questions! But the main point here is DPOA helps one avoid courts, saving a lot of time, money and hassle!
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Tricky question. Call his primary doctor and ask his assessment. If that doc still says LO is competant, get it in writing. Then get new Durable POA, worded just like the last , but change the trigger to date after LO signs. Explain that you never want to deal with having strangers access their competancy, so you want to be sure their wishes are clearly spelled out and take effect now, so no one can try to trick or take advantage later. A witness from Aging Services or Elder Law Office is a good idea. Witness should Not be someone who get financial benefit or reward from POA, Trustee, Executor duties or benefits from Will it Trust!
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Reply to GraceLPC
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I agree that getting an elder law attorney's advice is very important. When my dad didn't want to make certain medical decisions for my mom, the lawyer drafted a statement placing me as the medical power of attorney for my mom. The document specified that although my dad was not currently incompetent, he no longer wanted to fulfill this responsibility on behalf of my mom and was assigning it to his daughter (me). When the time came for me to fulfill more responsibility on behalf of both of my parents, two medical doctors had to state in writing that they were no longer competent to make financial or medical decisions. My duty as DPOA came into full affect once that was determined.

As for making financial decisions using a loved one's finances, a good lawyer will typically state that money has to be readily available for the care of that person. A Will or Trust documents (if done in a detailed manner) often sheds light on what can or can't be done by the POA on behalf of the creator of the Will or Trust. Once my dad moved into nursing care (by that time, my mom was deceased), we were allowed and encouraged to sell my dad's residence; however, the money was still his and had to be easily accessible should he need it for medical or other needs.
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Reply to busymom
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It would be a really good idea for you to have a formal, written and signed care contract with your dad.

https://www.agingcare.com/articles/personal-care-agreements-compensate-family-caregivers-181562.htm
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Reply to Marcia7321
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It maybe different in different jurisdictions, and depending on how the DPOA was written, but competence does not just refer to mental competence. A person can be physically incapable of doing a task, due to distance or a physical impairment.

Mum is DPOA for friends who are both mentally alert, but overwhelmed by physical decline.

My brother enacted POA for Dad 3.5 years ago when Dad has a stroke. Dad has had a full recovery, but db still acts as POA for taxes and a few other things. Dad is aware of this and is happy to have someone else handle things.

In your case, if Dad is on the record of saying No do not spend my funds to buy a house, then you would have a challenge convincing anyone that you have Dads best interests at heart. POA is supposed to act on the person’s behalf. There are some expenses that you can be reimbursed for, but I doubt a house or housing costs are included.

Depending on the level of care Dad needs, he may need 24/7 care in home or in a facility. How can you provide 24/7 care from a different house?
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Reply to Tothill
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Do you mean that your father is not agreeing to this temporary property purchase scheme and you're hoping to override his objection?

I do not think that would constitute grounds for having him declared incompetent.

If, on the other hand, you haven't discussed it with your father, why not give that a go? If he agrees then it's plain sailing. Make very sure that you can resell any property you buy at short notice.

I hope you're taking *all* of the costs of property buying, ownership and resale into account when you compare it with rentals. You may find that buying short-term would be more trouble than it's worth.
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Reply to Countrymouse
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Longhaul Dec 6, 2018
“Do you mean that your father is not agreeing to this temporary property purchase scheme and you're hoping to override his objection?”

..........sounds so underhanded... not the case at all
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A doctor must make the determination.
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Reply to RayLinStephens
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When I moved dad into assisted living the residence required the medical POA to be activated which meant I needed dad evaluated my two physicians. I understand your dilemma as my dad already had noticeable mental decline by this time and if I had asked him for financial assistance as in your circumstance he would have most likely agreed. Tough situation.
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Reply to wi57twin
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I guess what I mean is at what point...what has to happen... for a person to be deemed incompetent? What is that specific criteria?
How does it work to purchase so it is in his name not ours. Again, to be re-sold when that time comes. Temporary. He would have to do all the physical signings,etc. and we would not? Is there a way we can do that for him?
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Marcia7321 Dec 6, 2018
As it was explained to us, legal competency is determined by a court. You are considered to be legally competent until you are determined not to be. We recently asked for our senior to be evaluated by his lawyer as to legal competency. He was able to clearly repeat the information he was given and he was able to understand the potential consequences of his choices. He understands the papers he is signing. So he is legally competent as far as the lawyer could determine.

Many financial power of attorney forms are written with guidelines for how competency can be determined. If you read the forms your dad signed, it may help you. If your dad is still legally competent, he can sign a very narrow power of attorney authorizing someone to complete the purchase of property transaction for him. That is very common. I've done that myself when I couldn't attend a closing on a property.

A consultation with a lawyer would be a good idea. And if you think he will need Medicaid help before 2023, I would really talk to an estate planning attorney with a specialty in Medicaid law.
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See an elder law attorney. There may be a way to work this out if house is in dad's name. Where is dad now? Incompetence? Read the document. My mom's said when determined by two doctors. And they had to be geriatric treatment related. TS 2 thought she would be able to get a statement from mom's dermatologist!😂
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Reply to gladimhere
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I’m no attorney, but I’d have to say that if you buy a home for yourselves, even if it’s because you want to move closer to take care of Dad, it will be considered gifting and is a no-no when applying for Medicaid if needs be. As POA, Dad’s money has to be spent for his needs and not your’s, even though you’d be moving to help take care of him, the house would still be in your names and not his.
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POA goes into effect when the person is no longer mentally competent. It ends at death. I believe a doctor must sign off on this judgement of incompetence, it can’t be just hearsay. And, as POA, you and your brother must keep all receipts to prove his money was spent on him.
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