Hello Everyone. I am so happy to find this site. My (out of state) brother has vascular dementia. He is 'not' mentally incapacitated. He is in early stages so understading, decision making, cognitive abilities, etc, are all in tack.
So here's the issue. My brother hates where his son placed him to live and has asked the son for 2 years to find him to a better place to live. Son, who is POA, refused. Finally, my brother spoke to an atty as to what to do and atty said for him to tell the son to either resign since he is not doing his job, or do his job as the fiduciary and honor your wishes or revoke the son's POA.
Well, my brother chose to have his attorney revoke the son's POA. Two days later, his son, filed a petition that his father (my brother) was incompetent. Yet, in the petition, son claims that his father revoked his POA. So isn't that the same as admitting that the father "DID and DOES" have competency since the son is in fact honoring the Revocation and no longer doing any of the fiduciary duties that were called for in the POA nor has he seen nor spoken to his father going on 2 months now since the revocation was done?
It seems to me the son is talking out of both sides of his mouth in the petition. On the one hand, the son is accepting the revocation as being 'valid' and on the other hand he is stating my brother is incapacitated. Well, an incapacitated person "CANNOT LEGALLY Revoke a POA." So, if he is telling the judge the POA was revoked (in other words a valid revocation) and his actions prove he is accepting the revocation by not acting as the POA anymore, then how could their be a basis for a filing for guardianship claim incompetency? Is this how my brother should approach the court ..to Dismiss the case by stating that the son has already affirmed my brother's competency in the filing by admitting he accepted the revocation?? Or??? Any ideas??
You should know that the son is set to inherit over a quarter of a million dollars when his dad dies but don't let that influence you...I'm SURE IT DIDN'T INFLUENCE my Nephew in his filing of the guardianship!!! HA!
Thank you.
If the POA was presumed to be valid and son claimed that his father lacked capacity and filed for guardianship, it would amount to the same thing, wouldn't it? In order to file for guardianship, the burden is on the son to prove that his father is incapacitated. So I don't see that the a priori state is much of an issue.
There will be a court hearing. Your brother has a lawyer; even if he didn't, one would be appointed for him to defend him in the competency hearing.
Does your brother have an idea of where he'd rather be, or does he just dislike his current facility?
I'm assuming that he is privately paying for his current facility. Do you know how much the charges are?