Follow
Share

My question is....if a person is to be deemed legally incapable of making their own decisions, this is something that has to be done in a court of law? I know I seemed to answer my own question using the word "legally"........but....my 91 yo mother has refused for years to see a doctor and has been living in deplorable conditions. APS says no one has had her declared incompetent so she can live as she chooses. I have stayed with her, getting her groceries and performing various logistical needs for her. It has been very stressful with the daily angry hysteria, slaps and spitting in my face, etc In May she fell and has fractured her hip and broke her wrist. She has spent about six weeks in a rehab facility. I took the opportunity to get her to a geriatric specialist. He determined she has dementia, and filled out a paper saying she is not capable of making medical decisions. He also found she has thyroid, anemia, UTI, and other issues and has prescribed meds. She is due to be discharged from the rehab place shortly. They say she needs a walker, and has made other recommendations. She vehemently refuses any help at all. There is a board and care I want to place her in, but understand how it stands now, if she flat out refuses to go there, and refuses to take her meds, there is no legal way to enforce it. Back to my question then....the document signed by the doctor is not enough to put the "power" into my POA? I still need to go through a court of law if she is to be declared to legally not have capacity? Besides providing her with her care, I want to make sure I do not do anything I have no legal basis to do; and that I do not do anything that seems legally neglectful because of what the doctor wrote. Side note, I really think when someone is younger and prepare a POA document, they need to describe what their clear minded wishes are, and provide that their POA may have to take an adversarial stance about things they say when they are getting dementia.

This question has been closed for answers. Ask a New Question.
If you have to have a Guardianship and if she has already been diagnosed with dementia there is a good possibility that a lawyer will not draw up POA's and that they will suggest a Guardianship is the only thing that can be done.
there are 2 types of Guardianship Guardianship of the Person and Guardianship of the Estate.
You will have to go to court and you or someone will be appointed Guardian. There will be a GAL or Guardian Ad Liedum (sp?) this court appointed person will check in once in a while to make sure that you are following the "rules" this person will have to be paid. You will have to be bonded, the cost will depend upon the value of the assets.
You will have to keep ALL receipts that will prove how much you have paid to her care. If you have paid out of pocket you can be reimbursed from her account. If she is living with you you will be able to deduct some rent, some for electricity, gas...it might be possible that you could be paid for care giving services. I could not since it was my husband I am caring for.
You will have to keep all records and go to court every 6 months to present to the judge the expenses. (actually the lawyer goes but you have to provide all the info to the lawyer so they can prepare)
This costs a bit money for the lawyer, for the GAL, for the bond, for court. Not pleasant. Once the money runs out you are then Guardian of the person. No longer will they need a guardian for the estate and the person.
There are pamphlets the you might be able to see on line about Guardianship and what it entails.
Helpful Answer (0)
Report

Crsky58:

Get the File

Durable Power of Attorney Form

I, _________________ (name), of ____________________________(address), designate _______________________(name), of ___________________________(address) as my attorney-in-fact (or agent) to act on my behalf should I become disabled or legally incapacitated.

Upon the event of my disability or legal incapacitation, my agent has the authority to act in my place in any way that is lawful regarding the following powers:

To maintain and manage any of my real or personal property
To buy, sell, or lease any of my real or personal property
To borrow money on my behalf
To conduct banking transactions including liquidating, consolidating, endorsing checks, depositing, and withdrawing funds
To prepare, sign, and file tax returns
To enter into contracts on my behalf
To collect government benefits
To access safety deposit boxes and remove the contents therein
To handle any legal proceedings or lawsuits on my behalf
To maintain a standard of living for me
Helpful Answer (0)
Report

Clrsky58:
Execution

In order for a power of attorney to be a legal document it must be signed and dated at a minimum by the principal.[4] This alone, however, is not usually considered sufficient if the legality of the document is ever challenged by a third party.[citation needed] Having the document reviewed and signed (and often stamped) by a notary public increases the likelihood of withstanding such a challenge.[citation needed] However, such notarization is not always necessary for such a document to be considered legal.
Helpful Answer (0)
Report

Clrsky58:
Medical Power of Attorney

A medical power of attorney is one type of health care directive -- that is, a document that set out your wishes for health care if you are ever too ill or injured to speak for yourself.

When you make a medical power of attorney -- more commonly called a "durable power of attorney for health care" -- you name a trusted person to oversee your medical care and make health care decisions for you if you are unable to do so. Depending on where you live, the person you appoint may be called your "agent," "attorney-in-fact," "health care proxy," "health care surrogate," or something similar.

Your health care agent will work with doctors and other health care providers to make sure you get the kind of medical care you wish to receive. When arranging your care, your agent is legally bound to follow your treatment preferences to the extent that he or she knows about them.
Helpful Answer (0)
Report

To Caringson : Bless your heart. I need for you to tell me what that was like, because I think I will have to do the same thing, and I want to know what I will be facing. You can tell me here, or you can tell me in email, if that's Allright. Thank you.
Helpful Answer (0)
Report

Seems to me the geriatric spec you took her to already declared her incompetent by declaring dementia. If not go back and ask him to write that out so you have proof. Remember she cannot appoint a poa then. If that has not yet been done tell her if she does not declare a Dpoa now the state will appoint anyone they want whom she will not know or they will not know her. Wouldn't you rather have someone who loves & cares for you.
Helpful Answer (0)
Report

Talk to the Social Worker at her rehab. Ask to have her evaluated for long term nursing care. My POA gives me the right to make decisions for my Mom. With a POA and doctors note there should be no problem. Tell them with her fall, u feel u no longer can take care of her. Fractures are dangerous at that age. I don't think a court gets involved unless there is no POA or guardianship. Just the hitting and spitting is a good excuse to have her in long term care. Good Luck.
Helpful Answer (1)
Report

I meant Clrsky58---so sorry...
Helpful Answer (0)
Report

Ckrsky58: Here you are as below----
Full Definition of incapacity
plural incapacities

: the quality or state of being incapable; especially : lack of physical or intellectual power or of natural or legal qualifications
Helpful Answer (0)
Report

I'm not sure what the situation is one way or the other, I'll definitely check out her competency level, this will tell you everything you need to know. Maybe she might have Alzheimer's as I first thought but then again maybe not, I don't know either way. Until you get her competency level checked it'll be hard to tell, but the results will tell you all you need to know so you know what to do next
Helpful Answer (0)
Report

You want to first see if she's even competent, because if she is, I'm not sure there's really going to be much you can do. This was the case with my foster dad until one day the APS started realizing there was a problem. I don't know how long it took before something was done, but I guess it was better late than never. Fortunately he had no assets but I don't know what the rules are when someone does have assets. I guess it will be kind of hard to gain guardianship over the assets if only their name is on those assets. Did the patient previously make out a legal will? If so, you can't overturn that if she willed out her assets to certain people. If the assets are already covered in her will, those assets will definitely need to be protected so her final wishes will be honored. Definitely see if she wrote a will and if that will covers those assets before you do anything with them should you become her guardian. Guardianship comes with certain responsibilities that not everyone can handle. Make sure whoever becomes her guardian is actually cut out for it because not everyone can handle such a task.
Helpful Answer (0)
Report

Talk to the Social Worker at the ReHab facility. Tell her about the conditions and that your mother can not be discharged to home if she is alone.
You can then work with the Social Worker to find an Assisted Living facility, Nursing Home or you can make the decision to bring her to live with you or if there are other family members that will help in this situation.
If the ReHab facility is aware that she can not manage on her own they will not want to discharge her because they do not want a readmission.
Declaring her incompetent will require a court. Someone will have to be appointed Guardian. This can get complicated, expensive and a down right pain in the @ss! (voice of experience here)
I strongly suggest you get a lawyer that specializes in Elder Law. Expensive? Yes..Worth it? Yes.
As long as there are assets, house, money, property you will need or have guardianship of the person and of the estate. Once there are no assets it will revert to a guardianship of the person only. That is a bit easier and does not require a court review of expenses every 6 months. All I can say is save EVERY receipt that you have that has anything to do with her care and any expense you put out.
Helpful Answer (5)
Report

You will have to take your mother to court to have her declared incompetent. I had to do it with my mother. It is no picnic. If you have siblings, you better all sit with an attorney and make sure the caretaker ends up in charge. No shared care taking with out of town siblings. I made that mistake, which added to my stress.
Helpful Answer (1)
Report

Have you spoken to the discharge planner about where mom will live and who will provide care? The news that she cannot return home may be recieved better from a stranger than from you.

Has she been seen by a geriatric psychiatrist? Sometimes, antidepressants and anti anxiety meds can make a world of difference.
Helpful Answer (3)
Report

Usually a person must be deemed legally incompetent by a court, such was the case with my foster dad. I know it's all too obvious in some cases where they haven't yet been deemed by the court, but until then your options are limited. I don't know whether or not your mom ever wrote out her wishes when she was younger and of sound mind. However, it sounds to me like she may have Alzheimer's from your description. At some point they become rough and at some point downright violent. With your descriptions, it sounds to me like someone needs to take guardianship of her. I know that's not all elders get this bad, some can live at home right up to the day they die. I know that usually elders don't want to be forced into nursing homes and I don't blame them. I don't know if you've ever noticed, but anytime I've ever walked into a facility I just get that eerie feeling of the loss of freedom and the presence of death. Another friend of mine described something from when she used to work in a nursing home when she was much younger. She was always able to smell that smell in the air right before someone died. No one believed her when she spoke up and said something, but I guess after the person died 12 hours later, someone had to believe her. The feeling of walking into the nursing home is never a pleasant thing, and I don't blame people for finding those who are trying to force them into those facilities, so would I. I no it's not always possible to avoid going into a facility, but sometimes it's absolutely necessary.
Helpful Answer (1)
Report

If she's living in deplorable conditions APS is not doing their job. You should have her placed in the nursing care facility using your POA and the recent letter from the doc. No elders ever want to go into care and the facilities are used to this.

She may settle in after awhile or she may be so much trouble they kick her out. If she's hitting and spitting she needs some calming meds.

Legally, she gonna sue you? Some relatives might sue you? This borderline competency situation with elders Is common. And from your description of her behavior it's pretty clear this has crossed the border. Do what you have to do to care for her.
Helpful Answer (7)
Report

This question has been closed for answers. Ask a New Question.
Subscribe to
Our Newsletter