How to gain guardianship of parent in nursing facility when stepfather has POA?

Guardianship is the path you would take if you feel called to care and manage for your mother.

If the spouse assents (and there are no objections from your siblings if you have any) the way would be clear for the Court to consider your Petition for Guardianship.

If there are objections, you would have to decide whether to go forward with an adversarial proceeding.

The best way to start is with an elder law attorney in your state who could approach other family members with requests for agreement and assent, rather than controversy.

Aiy-yi-yi!!! I don't know what to tell you, this is a big old MESS.... I had to take my mom back to the lawyer to take a relative out of her will (he was severely disabled and an inheritance would have ruined the income from disability, etc. that he was living on). We got her there in the nick of time because this was when mom was still fairly lucid, but there were various people from tv and her parents living in her house! We filled out some forms, and then the law people said they wanted to 'speak to her alone'. So I went out in the waiting room with my palms all sweating, waiting to hear.....lucky for me they came out, said 'sign one more time and it's all set!' Whew! Off to Denny's for pancakes! .... But this situation, LW needs a lawyer asap. good luck!

Question: If your stepfather has already tapped out her financial resources what is in it for him to retain care/POA over your mom? Have you asked for POA? If your step parent was suspicious that your mom might want a divorce he could stop the POA process just be nasty. How long has she been in the skilled nursing? How is that being paid? Can she stay there indefinitely? Who decides?

You could be in for a court battle & HIGH legal fees.

You have your work cut out for you. I want to give you the nuts and bolts of this situation. You will need a lawyer and at the very least two medical doctors that have seen her in the last three months. And you will have to have the support of the nursing home to get the ball rolling.

If your Mom is mentally unable to make decisions that will be in her best interest and to clearly understand the ramifications of these decisions. Your best bet is to call Adult Protective Services. These professionals cannot only help you with you Mom. Legally they also have the ear of medical and legal entities in your geographic area.

It is important that you understand this is not a quick answer and it will be costly. While in her best interest the courts will want to want to preserve her wishes when she was able to think clearly and understand your interest in the situation. It is important that you look at the situation through the courts eyes. They are in the position to take away someone’s legal rights. This is not to be taken lightly so a lawyer will be appointed for your Mom to determine her best interest. You will need a lawyer to describe for the courts why you believe you are better suited to provide the decisions in her interest. If you have a good lawyer the situation will soon become clear to lawyer and you.

This is difficult for everyone involved and it is not taken lightly for the courts to intervene legally in the marriage of the person or the parent/child relationship. I wish you well and beware that this is one of the most difficult of decisions for the courts. If you have siblings it is very helpful to have all children be involved in the best interest of your Mom.

One thought you might want to find out when probate court is occurring in your district. Then take a day (these proceedings are open to the public) and go hear what is happening in these decisions. I can think of no other way to truly understand the gravity of your situation.

when it comes to competency be very careful with anyone that you speak to, what state are you in? there are many corrupt lawyers that will pull the wool over your eyes and you may think they are looking out for the welfare when they are actually in the money making game, they get control and it is just as bad as the original holding the POA. if you need help in determining this just email me and I will see what I can find for you.

My personal opinion with the competency issue and what an attorney will allow is based on experience. It appears that this POA issue has made doctors out of attorneys ! Who is the attorney really protecting? If the attorney is working for you they may be more inclined to view the "patient" more favorably for your wishes. if the attorney is hired by the patient then the attorney may rule in favor of protecting the patient.
You state that "her" home was sold? Who signed the papers? So many questions jump out to ask...you really need an attorney....or at best some elder lawyer who can listen, sort out your requests and prioritize your mothers needs. Also make sure the attorney informs you of what could happen in guardianship cases.

I often wonder if the person who slips in and out of competency can be deemed competent to speak for themselvee at times. Those close to them can tell when they are thinking clearly. A stranger would not be able to tell, and a family member might be a bad person whomlies. How can one tell..... and where does the competency law lie on that issue I wonder.

Also if she signed the POA after her dementia that can help

You can take her to an eldercare attorney to see if she can appoint you her Power of Attorney, if she is competent to do so. Otherwise, you ask the lawyer how to petition for guardianship, and how to handle stepfather's abuse of poa.