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My brother resides 100 miles away, I am 1/4 mile away. I am primary care taker. How do I change an enacted POA to become #1?
I took my mother to the ER and was physically there with her, but had to wait for my brother to make decisions with a voicemail, and a return phone call back through out the night.

Little late getting to the game here - I see that Lizzie3830 posted: "...consulted legal and all that is needed is a notarized statement by my brother, stating he is willing to resign as primary." and in another post said: "In WI primary can resign as primary in a statement, notarized and included with currently enacted POA (Health)." Sounds like it is a done deal, but it isn't clear if this means he has resigned his medical completely, or somehow just resigns as primary, but still retains POA in the event sister can't do it.

This is how resigning POA is commonly done (notarized letter to various parties), however the only issue that isn't discussed (others did point it out) is that if one has resigned the medical POA, what will happen if the alternate can't or won't perform the POA duties, for whatever reason (incapacitated, develops dementia herself, death) and principal can no longer appoint anyone? The only solution is going for guardianship, which isn't easy, isn't cheap and takes time.

I like the suggestions some people made, where the notification specifies one would be unable to be POA during a certain time frame, but have no idea if this is even legally possible. It would be nice if someone knows whether one can "temporarily" give up their POA duties. The only other question this begs is why would they not defer to #2 if they could not get an answer from #1? He could be on travel out of the country, incapacitated himself, meanwhile mom gets zero care because they can't contact #1??? One would think sure, make concerted effort to make contact, but the patient is the important one here and they should only give it some much time before deferring to #2.

In our case, two of us are named as POA (medical and financial), but there is no specification about who is #1 or 2. Even though one brother isn't listed, we consulted on various issues before proceeding. For the most part, all non-care duties fall on my plate (financials, medical, calls from facility, payments, procuring meds and incidentals, etc.)

If two people need to be named (there should be a second, just in case), it might be best to be listed as either/or rather than #1 or 2 (and certainly NOT one AND two), especially for those who get along and would work together rather than bicker, blame, and lambaste each other!) We have no idea where the future might find us (as in this case, #2 was further away when documented, but now is the "go-to".)
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Reply to disgustedtoo
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It would be handy to know what state you live in when asking a legal question.
Want to save yourself all this worry and wondering: Contact:

HIRE AN ATTORNEY. I recommend contacting:

National Academy of Elder Law Attorneys
https://www.naela.org/findlawyer
naela@naela.org
NAELA Council of Advanced Practitioners
1577 Spring Hill Rd., Suite 310
Vienna, VA 22182 
703-942-5711
naela@naela.org

Personal recommendation:

M. Carl Glatstein
Glatstein & O'Brien LLP
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Reply to blueberrybelle
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If your mother is able she can file a new POA and then you file it with the court.
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blueberrybelle Oct 14, 2019
You don't file a POA with the Court. There must be open proceedings with a case number to file a document with any court I know about. You keep the original and make copies for others when you use it.
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Talk to bro - maybe he could write a letter saying you have his authority to act when he is unreachable - try it out as that could be the simplest way

When I went away, I informed the NH that my sister, who was back-up POA, could be called if I couldn't be reached & never had any problem
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My brother finally told the facility to have me contacted first since I "know more of the medical". From their policy, they are supposed to contact the POA first then they call the next family member and that is me. So from now on, if they have any problems, they call me. I am fine with that. I feel that I can handle her a little better than he can. At least in this situation. There are other people that have the same situation like you do. Pray that things get worked out soon.
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AlvaDeer Oct 8, 2019
This is great news, Judy. You have this POA you wanted and you are right there and you can advocate for your Mom. I am so relieved to hear that is over for you; it has to be a great relief.
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Mom needs to change it. Tell her you will keep her precious #1 son informed and he can be #2....... OR, he can be there for any and all medical situations. 100 miles isn't that far and it's his responsibility. You're being terribly disrespected!
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NoTryDoYoda Oct 7, 2019
The mother is no longer competent and when this document was written, she wasn't nearby either. This has nothing to do with him being disrespected. The only way to resolve this is for the brother to resign in writing.
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Doesn't the document say something about using alternate when first on the list is not available or unable to fulfill obligation? I doubt there is a specific time on the document that says you have to give Person #1 XX number of minutes to respond to make a decision. I doubt you really should have had to wait on him to make a decision for very long, however dealing with medical personnel may create delays. I mean, what if he had not returned the call for several days? Common sense should come in to play, however that is not always the case and makes it more difficult for you.

First talk to the atty who prepared form and see if names can be reversed. If that cannot be done, get a letter from him to say something like: I am not available 24/7 to serve as POA #1. In the event a medical decision needs to be made and I have not returned your call within 15 minutes, the alternate person listed on POA will make the decision. - Maybe the attorney could create a legal looking document to clear this up.
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@Alvadeer, I would be doing him a favor. The first paper she filled out, I signed because it said designee and I am her designee. She told her doctor at the home visit last year, if my brother would have stayed, that she wanted me to take care of her healthcare. So that is when the doctor got me the form. This was Dec and in January, sent the form to her atty, faxed and mailed the original. I e-mailed him last month and he told me, that since she didn't sign it, it wasn't legal. It took him about 8 months to even think about telling me this? Lack of communication. He can't argue with what my mom wants. She understands what she signed. He is way too busy teaching and this would help him out. The facility contacts me mostly instead of him.
I have been debating about sending it to the atty. All he wants is her signature. My brother might say that she didn't understand what she signed. But I feel that she does. I see her most of the time anyway.
If it comes to court, then the judge would see that I am taking care of her healthcare since she moved into her apartment last year and now with making sure that her medicine reminders are filled and taken to her weekly. Plus we take her to church on Sundays and only when she feels up to it. He told them when she moved in that I would be taking care her medicine.
We don't talk anymore anyway. We'll see what happens,right?
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AlvaDeer Oct 7, 2019
Whether you talk or not (and it is a great shame that you do not, because at this point you are BOTH involved in her care one way or another) is not the point. He has a right to be informed of changes you have made. Frankly, as her POA having taken the POA from him, it is somewhat crucial that SOMEONE inform him. That is my humble opinion. It is now time to put away sibling rivalry and family warfare and begin to act as the responsible adults responsible to help your mother in her last years that you ARE.
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My brother is the POA. She is in a facility and last week she took a fall. They tried getting in touch with him but he wouldn't answer the phone. So they called me. The next day, I called to check on her and I heard my brother in the background. He left and I ended up talking to one of the caregivers and she told me that from now on for them to call me instead of him since "she knows more of the medical". I have been taking care of her medical ever since she moved into her apartment last year and started having trouble taking her meds. This was before she was diagnosed with dementia in June of this year. He has done a lot of other things for her. He got her moved from the house to the apartment to where she is now. I don't mind doing it either. That is why I had her sign a healthcare representative form. Her atty said that it had to be her signature for it to be legal. Plus I had it notarized. Will see how things go. Don't think that he will really care. He is also her financial POA. What else is left for him to be POA of? At least I am helping out when I can.
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AlvaDeer Oct 6, 2019
Judy, I am correct in assuming (sorry, I can't remember) that your Mom is mentally well enough, with only a bit of dementia, to know what she was doing in signing this for you this week? If so, this sounds like the right move to me. I will only say this--it could be problematic that you didn't tell your brother, her POA and current serving POA, that Mom is doing this, or at least now, right after it is done. I worry about his finding out after the fact because he will have basis to claim that you are going "behind his back" and with some ulterior motive (which I can't image what). Am I right also in assuming that for the most part you agree on her health care? That is to say you are not a DNR believer while he is a ALL heroic measures guy? Because if so he could claim you are trying to undermine his authority to act for your Mom, while your Mom is not fully capable. I wish you luck in this for sure, and I think it makes sense, since you are THERE to have health care proxy. I just worry that the communication is so poor between you and that this will cause you more trouble than there should really be. I believe you ARE helping out, concerned for your Mom and her care, and THERE. But if push comes to shove and you two go to court at some point with the bickering going, then I fear the guardianship will be taken from you BOTH at some point. This would leave your Mom without care from either of you, and as a ward of the state they could put her wherever they wanted and do whatever they wanted. Please be careful, thoughtful, kind and try to get along. It will all go so much better all the way around. This could go on a long time forward. Best to you.
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I have found that this can get so complicated. Depending on the laws in your state, etc. I suggest an attorney who specializes in elder law. And like Beekee said? That piece of paper doesn't prevent them from doing things on their own. And if they are not capable of making good decisions? Trouble abounds. Happened to us and we learned the hard way!
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Reply to lynnm12
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For everyone reading this while their parent still has legal capacity--

1. Hire attorney to draw up a durable power of attorney that names you and sibling as equal co-agents permitted to act independently. Most states allow this. Of course, it only works well if you and sibling are on good terms.

2. Get parent to sign three originals in the attorney's presence--one for you, one for sibling, and one for parent.

3. Even if your parent has some level of dementia, if he or she can understand a simple explanation of the legal document--then the parent probably has "capacity" in the legal sense. The bar is kind of low, in other words, for someone to sign most legal documents. Even if they already have an official diagnosis of dementia.

4. Remember that the power of attorney allows you to act, but it does not stop the demented person from acting. Demented dad can go buy a new car if you take away his old car. Demented mom can take out large amounts of cash from the bank for a "friend." Preventing these scenarios takes more than the piece of paper called the POA.

5. Take POA to parent's bank. You and sibling should go together. Probably no need to bring parent. Just make sure the document is on file at the bank. They will probably scan it and give it right back to you.
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Reply to Beekee
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Your mother has to sign the POA in the presence of a Notary Public or Constable. You may want to seek out an elder law attorney.
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Reply to Llamalover47
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Call an attorney. The POA doesn't need an attorney to officiate or approve, but it's a good idea to ask for advice about wording in a case such as yours.
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NoTryDoYoda Oct 4, 2019
Durable POAs must be notarized. Medical POAs must have two witnesses. Sorry but neither the daughter or the son has the legal authority to change the document.
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Is your Mother able to sign a new POA? Mom must sign a new POA to name you as sole agent. Are you now called "successor agent?" You want to be a full POA agent. If you disagree that your brother needs to be consulted when you are the main caregiver, he can have a POA in case something happens to you, but you need the full power.

Caringdil -- many different documents must be signed in the ER. If the patient is unable, a POA or someone who has a Durable POA for Medical decisions is necessary.
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worriedinCali Oct 4, 2019
No her mother isn’t able to sign a new document. I don’t think she needs to either since she appointed a back up POA. What the OP needs to do is ask a lawyer how her brother can step down & she take over, legally.
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I hope I am not being nosy. What kind of decisions were made in ER that needed POA? My husband has POA for his mother but I have taken her to ER a few times and luckily it never came up.
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elaineSC Oct 5, 2019
I had POA for my Mom and I only had to show it once in the ER and the lady that takes insurance information and all scanned my POA in. However, they had decided to admit her so that is why they needed it.
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(I haven't read thru all the responses; apologies if I'm duplicating.) Since there are two of you listed, please do not get the brother eliminated from POA list. What if something happened to you before your mother is gone? Who would be responsible for her then?
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Reply to Hummer
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If your brother is not wanting to resign, or wants to still be required to be contacted, I suggest you both modify the MPOA to state that if either of you cannot be reached, or has not responded within...say 90 minutes...that the need for contact is waived and the available party becomes acting primary.
Talk to hospital staff for assistance in the wording that they will accept & be able to implement. They won't charge you for that advice/clarification. Be sure to have updated copy on file with all local hospitals, LO's doctors and carry a copy. I would also scan to your phone with signatures, dates and Notarized clearly readable. A copy on a flash drive on your car keys is a good idea. You can also put lists of LO RXs, DRs, allergies, & medical conditions.

Many hospitals won't open the flash drive due to cyber security, but you can run to a office supply or copy center and print it out.

Hope this helps. I think it is good to have everyone in the loop. You should also have a time limit provision for treatment even if neither of you can be reached... including acceptance of responsibility to pay!
An ER will only do minimum to save life & limb in immediate danger of loss without someone signing release to bill insurance & responsibility for any balance.

Also be aware of exact rules the insurance has if there are any required or preferred Networks! Know what qualified as a covered exception and have that kept up to date in written Med. Directive & MPOA. This way hospital is directed in writing to make sure care provider is covered!

You didn't ask this, but if in Network Dr/hospital/clinic utilizes an out of Network Provider insurance should pay or the party authorizing the Out of Network Service is responsible for the bill. You put it in writing.

Generally if a in Network hospital, say uses specialist or Radiologist off site, then insurance is supposed to cover it since you went to Network Provider & have no control of whom they contract with. These Surprise Bills are a big problem these days, but mainly that people don't know their rights.

I had to fight this because the Only practice of Specialist needed were associated with OON hospital across the highway. If they are On all or only one available on staff, then they get grandfathered in for emergency or hospital stay. Outpatient they can require you to drive (50 miles in IL). Again know the rules & regs and put it in the documents. That way you are covered in a crisis.

Good Luck!
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NoTryDoYoda Oct 4, 2019
Sorry, but the MPOA is a legal document that can only be changed by the person granting it, the mother, via a lawyer. She's not up to the process from what the OP has written. I don't know why people think that POAs are so changeable?

The only remaining legal option is for the brother to resign which would leave the mother without a back up POA.
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Simple hire an attorney & hope your brother agrees! Dr Grenan
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NoTryDoYoda Oct 4, 2019
All the lawyer can do legally is accept the brother's resignation which will make her it. He can't change 1 for 2.
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This is an easy one. Have your brother drive the 100 miles and you two go straight to the attorney’s office and switch you to #1 and him to number 2. That clears up the whole thing. If your brother is unreasonable or doesn’t care enough to do this, go to the attorney yourself to find out what to do. Keyword = attorney.
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NoTryDoYoda Oct 4, 2019
That is not legal. The mother gave it when she was of sound mind. She is the only one who could legally change it, but she's not up to that now according to the op.
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Wait, I would not have him resign. I would have a letter that states from this date to this date I am unable to fulfill my duties as POA, attach that to the POA and it should be fine.

If he resigns and God forbid, something happens to you then your mom doesn't have a POA.

If the form states unable or unwilling...then a notarized letter stating unable for a set amount of time (I would do 6 months) should default the POA to you.

Please talk to an elder law attorney before making changes that can not be undone.
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AlvaDeer Oct 4, 2019
I think that this sounds like best approach given, and hope they will go to the attorney and accomplish this. They BOTH have been appointed, but one of course has to be first. If that one says "due to time and distance I cannot appropriately serve for such and such amount" I would think this would be easily accomplished. I hope she updates us as to how this worked out.
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I never would have agreed to be the primary care giver if I had no authority to make any decisions.  Either things are shared or they are not.  If you really needed his input about a life or death decision and felt the need to call to get his input, that is one thing, but to have to wait until the next day to make a decision because he is not available is another.  I would talk with your brother and mother (if she is able) and get the POA reworded if it is not set up to allow you to manage her care effectively and in real time.
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NoTryDoYoda Oct 4, 2019
See Lizzie's reply from October 2nd for more info on this story. .
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Both are Important, However, If one ia Not Available, The other One would Take over as Number One, hun. Talk to your Bro, See if you can Redo this.xx
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You are dealing with sticky, heavy legal territory which only an attorney can solve.
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Beekee, what is the correct procedure?
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Beekee Oct 4, 2019
Scroll down to her later posts to see what worked for her.
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I love how half of these answers turned out to be dead wrong.
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What does your mother's POA actually say? My mother's POA documents state the secondary can function as the attorney in fact anytime the primary is unavailable for any reason. My brother (who is primary on DPOA) has written a letter stating he has directed to me to act as DPOA when he is unavailable due to work or other unnamed reasons so I could manage some property sales. My understanding from our attorney is that he could write a letter authorizing me to do anything the DPOA covers without resigning. I don't want him to resign because I want him to take over the DPOA responsibilities completely when he retires. I'm primary on HCPOA and he's secondary there.
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Judy79 Oct 8, 2019
Hey, that's interesting! Never knew that part.
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I live in Wisconsin and have some familiarity with POA law. There don't appear to be statutes or case law that prescribe how resigning must be done. It's possible that staff at a hospital or other health-care facility would hassle you about the process. But here's what I suggest anyway.

I would start with having your brother write a letter in which he states his unwillingness to continue being POA. He should have it notarized. Then he should send it to you. You should make copies, and give one to your mom's primary care provider and keep the other copies at home. Take one with whenever your mom has an appointment or has to go to the ER.
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Well all hail the State of Wisconsin! They get the gold medal for writing their forms and guidance notes in plain, intelligible English, and for designing them for practical purposes. Would you look at this! -

"If I am no longer able to make health care decisions for myself, due to my incapacity, I hereby designate (print name, address and telephone number) to be my health care agent for the purpose of making health care decisions on my behalf. If he or she is ever unable or unwilling to do so, I hereby designate
(print name, address and telephone number) to be my alternate health care agent for the purpose of making health care decisions on my behalf."

Which couldn't be much plainer, simpler or more to the point and is straight from the DHS for Wisconsin's own website at https://www.dhs.wisconsin.gov/forms/advdirectives/f00085.pdf

So for instructions on how brother goes about formally indicating his inability (geographical) and/or unwillingness (because it's just not working very well), I'd give the DHS a call and ask them; but as the website is so good you might find the answer by searching without difficulty, I didn't try that far.
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Reply to Countrymouse
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So the problem is the sheer impracticality as the arrangement is turning out, it isn't any kind of disagreement between you and your brother? Then I agree - suggest he resigns his POA and allows you to take over as secondary. To help soothe his conscience about "giving up the job" so to speak, you might perhaps volunteer to keep him fully informed of developments and reassure your mother on this point (if she's bothered).
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Lizzie3830 Oct 2, 2019
What does he need to do to resign?  We have no disagreements, we communicate well, and the original POA was written, and him designated as Primary when I resided in AZ.  It made sense. Then.
(Mom's dementia is so advanced she is not aware of paperwork, or decisions that need to be made, and allows me to speak on her behalf at the doctor's and at the ER).
It's the hospital, the doctors and the palliative care team that is following the chain of command. :/
I appreciate your response!
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Alva is correct. Your brother can resign as POA, allowing you to take over as the 2nd named. It's not a big deal, and it is definitely something that seems logical as you are the one doing all the work, yet being inconvenienced by your brother's distant location.

If I were you, I would consult an elder care attorney just to make sure you do things legally.
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