FyreFly Asked July 2010

What are the legal issues surrounding a Durable Power of Attorney (DPOA) vs. a conservatorship?


If I already have a DPOA, is a conservatorship even necessary? Mom has Alzheimer's/dementia memory problems which are affecting her mental state. She agreed to sign a DPOA with me as her agent back in March, and I assisted her in setting up and monitoring her bills.

Due to circumstances that are explained in more detail in my profile, I believe that my mom needs to be under a doctor's care. I cannot get her to see a doctor (for any reason) - but I feel she is no longer competent to manage her own finances - I want to step in and help, but by doing so, I know she will be convinced that I am "stealing" her money. I've set it up twice now, and both times, she's gotten paranoid and closed her billpay account. Now, her creditors are calling me with her bills two months past-due.

My question is, with a Durable Power of Attorney currently in force, can I step in and take over her bills even if she doesn't want me to? How do I prove that she's incapable of making this decision anymore - should I go to court, to a doctor, or what?


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bonbon65 Jul 2010
Dear FyreFly:

Can she revoke the Durable Power of Attorney? If so, you could be left with no power at all to act on her behalf. I do not know what the laws might be where you live, but you should be able to go to court to get a conservatorship (which she cannot revoke). To prevail in such an action, you'll need to prove her inability to adequately and safely handle her finances. Such things as an inability to manage her checkbook, pay her necessary bills in a timely manner, use good judgment in avoiding scams, fraudulent schemes and shysters, making inappropriate investments, etc. would show the court the reason for your concern. Of course, a doctor's affadavit regarding the onset of Alzheimer's--which to my knowledge is progressive and irreversible--will be important, too.

The court will oversee your actions by requiring you to file reports periodically (how often depends on where you live). This will protect your mother against the conservator "stealing" her money. Your mother will not be asked to agree to this--if the court finds the conservatorship necessary to safeguard whatever assets she has, then it will be granted. (It will weigh her right to independence against the liklihood that without the conservatorship, she'll exhaust her funds foolishly and then become dependent on state support.)

In the meantime, start sending/faxing that Power of Attorney to all the service providers and ask that her bills be sent directly to you. That might assure that they get paid in the short term until you can get the conservatorship. After that, you'll be free to set things up in whatever responsible manner you choose.

Good luck! I'm in a similar situation myself, so I feel for you.
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