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In 2015 my sister and I realized we needed a personal care agreement after seeing the experiences of a friend with her parents. We recognized the future was coming fast with our mother. At that time my sister was doing the primary caregiving as she lived in the same area and I was 3 states away. We followed all the suggestions about details of the responsibilities, and monetary compensation, even included annual COLAs. But nowhere did anyone suggest we have an alternate caregiver section like wills, POAs, Trust agreements, etc....



Last year my sister passed from cancer. During the "battle" years, her death, and the year since, my mother's dementia has progressed significantly. Now we need a new caregiver agreement specifying me as caregiver, as the recipent of her money, etc...



So.... I'm her POA and every other designated anything. But this is a contract.



Obviously, it stands to reason, that I shouldn't be able to "act on her behalf" as POA and sign her name to a contract that on the surface appears to benefit me.



So this is a question about how to alter, change, modify an existing agreement or create a brand new one when your parent has dementia and circumstances change.



The degrees of dementia here are probably important. It's also important to know that in our case there are no dissenting family members. But that's not the case with others reading this question.

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I'm no lawyer but it seems to me that the existing contract between you mother and deceased sister is now null and void and it's only relevance is it sets a precedent of your mother's thoughts about compensation. The smartest move would be to consult an elder care lawyer, but if you are certain your family backs you 100% you probably could just continue without making any contract at all; your biggest concern would be ensuring that everything you do would be able to stand up to medicaid scrutiny if there is a future need for that.
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When I took my 100+ yr old Aunt to the lawyer to make a change to her Will, I was not allowed in the initial meeting (even though I was and still am her DPoA). My Aunt has no dementia and just a tiny bit of memory impairment. The lawyer was interviewing her to see if she could comprehend what she was doing, and to ensure she was not doing it under pressure from me or anyone.

You would need to take your Mom to the CELA (certified elder law attorney) who would interview her regarding her capacity. If she has more than mild dementia, it probably won't fly. Memory is less of an issue than comprehension in this case. If the attorney deems she does not have capacity, then whatever legal documents she created prior are the permanent ones going forward (Last Will, Will, PoA, etc). She will no longer be able to "...modify an existing agreement or create a brand new one".
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I agree, at this point you cannot change any contracts Mom made. POA does not give you that ability.

How does Moms Will read? Does it leave her assets to you and sister to be split? If one dies then the other inherits? The only time it trickles to grandchildren is if its stated in the Will.

Are you POA because you were named secondary? Any compensation should be in the POA. Mom can no longer do a caregiver agreement. So if your sister was compensated, you can't be unless in the POA. Moms money can now only used on her. Yiu cannot profit in any way unless in writing.

But then, if your any only child and the only one to inherit, who is going to question wgatbyou do unless you file for Medicaid then you have to back up every withdrawal they question.
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Does your POA include financial matters? If so, then in my opinion, you can use the caregiver agreement your mother made with your now-deceased sister, and assume the role as primary caregiver and continue with the COLAs. You also, in my opinion, can authorize the use of your mother's money to pay for whatever care you cannot/do not want to provide. For example, if your sister did the meal prep and now you are doing it, I see no problems with you being compensated in accordance with your mother's wishes as long as you keep records. Another example, if your sister did the house cleaning but you don't want to do it, I see no problems with you hiring a cleaning service and paying for it with your mother's money as long as you keep records.
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JoAnn29 Jan 2023
I see ur point, but I would run this by a lawyer.
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This is an attorney question. I would definitely not take the advise of a social media forum on something this legal and this involved, especially as you are POA and you have a fiduciary duty and obligation. Do see a Trust and Estate Attorney. The answer to your questions now involves how many other siblings are living, whether or not it is wise to become your Mom's guardian, and etc. Good luck. Do seek expert help when it is needed. MDs are best for medical and attorneys for legal. We might (and almost certainly will have ) good guesses on this, but legal matter differ markedly state to state.
I am so sorry for all the travail, the loss of your Sis, and now your Mom's worsening condition. I think you have a long history and will be great at managing things for the best for your Mom. Good luck.
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Elder Law Attorney can help you sort through all your legal issues. I heard you say, " I'm her POA and every other designated anything. But this is a contract."
I can't figure out if you want to do all this or you're being coerced into accepting full responsibility. I'm not sure that a person who suffers from dementia can legally sign anything, but the lawyer does. You might also want to ask what you should do if you decide to resign from being "POA and every other designated anything."

Always have a "Plan B" so that you can choose to live your life, your way
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If you're talking about getting paid, as it appears your sister did, you should get legal advice on setting it up. With mom's dementia, she won't be able to sign a document. You, as POA, designating yourself to receive payment for working for mom could be viewed as shady later on even if everyone seems to be in agreement at the moment. If you are going to remain out of state and hire an agency or other person to take care of mom, then your POA would handle that.
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lisamaech: Perhaps you should pose your question to an elder law attorney.
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I have a similar situation and I did speak to an Elder Care attorney whom is part of a firm that I pay $30 a month for, if finances are a problem for you. Competency is determined by the State you are in. Some laws of the State say a person is competent to sign anything and all they need to know is their name and if they have a child, progeny. Not how many, their name(s), sex, nothing. Only that they have someone, somewhere. If there is a document that exists, you would need to file a court request for guardianship and present PROOF of their incompetence through medical records, tests (brain scan, etc), expert and personal testimony of the persons' need for a guardian and that you are the best person for the job. The court will ask for financial records for you and mom to see if you can prove that you have not misspent any of her money and that you won't, or haven't, used her money for your benefit. I don't know if that includes being compensated for the work you do for her. IF anyone can challenge this, you are in for a legal battle that won't be cheap. You weren't specific on that. I said all of that to say: talk to an ECA in the State who has jurisdiction and good luck. Future Medicaid is a whole other issue. Getting old is so complicated. Good luck. Additionally, it's never too late to look into assisted living or nursing homes. I promised my dad he would die at home and took care of him for 8 years until I became too ill to keep that promise. Breaks my heart but my dad is a veteran and we found a place here that is beautiful and he is happy there. The VA pays for all but $300/mo IF your mom is the spouse of, or a veteran herself. You didn't say.
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No matter what answers you get on this question I would see an attorney, either the original one involved in the contract or a new one. As POA you will understand that you are able to pay for this with Mom's funds.
I always caution people that when you need EXPERT medical or legal advice the people to see are the experts. Forums are full of opinions, and has some very very bright people, but in legal matters you cannot afford to take the wrong advice.
I sure wish you luck and hope you will update us on how you can approach this once you get good advice.
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"...your biggest concern would be ensuring that everything you do would be able to stand up to medicaid scrutiny if there is a future need for that..." I'm curious about what that scrutiny entails. Is there an objective checklist for the scrutiny? Is that scrutiny up to the whims of whoever is doing it? I'd love to hear from those who've actually gone through the process *and* who were not trying to defraud the US government. How long did it take? Where did it take place? Was it as bad as you thought it would be? And did Medicaid find any fault with anything you did?
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“It’s a contract” statement is confusing given a POA is a contract but it is regulated under Probate Code in CA not under contract civil law. Different requirements for being able to legally sign a Durable POA, will, Trust exist in probate code then from civil contract code. Read your State’s Probate or similar name Code for guidance.

Sveral things from attorney: Just bc someone has dimentia doesn’t mean they loss all their legal rights. People with mild and moderate dimentia are usually able to still maintain own legal rights. Who cares that they don’t recall date, where they placed something, what they last ate, three items to memorize, or who President is. Do they need to to function? No. That is irrelevant to legal rights to make a Durable POA. those are tests by doctor for home safety.

Many people can’t say these things and they do NOT have dimentia yet have all their legal rights.

An attorney told us to write a statement that correspondences with States’ Probate Code in CA. Law may be differnt in your State so look that up first. Read Code sections for laws on the definition of “competence” in estate planning. In CA It is that the Senior can recall who their family is, what they own (dimentia patients generally still know they own a home), nature of what a will, Trust, Durable POA do, and their decisions in estate planning and the consequences of their decisions when making estste planning documents like POA, Will, Trust.

The five daily living tasks are irrelevant in determining competence to make own legal estate planning decisions. This is because one may be fully physically paralyzed but have a brain fully healthy. So for estate planning under CA law in Probate code a person only needs the above I already mentioned.

Write a half page statement and have parent’s regular review it and doctor sign it. It should say similar to this: I Dr. _____ have seen patient ___ for more than seven years. Patient knows who her family is, what her property is, the decision and the consequences of making her will, POA, Trust, …. Then doctor signs and dates. Not a big deal. We get one two times a year from doctor so my mother can legally do things.

Most adult children are so fast to have doctor instead certify that parent is unable to care for him or her or incompetent. They do this, because most Durable POA only take effect when person is deemed incompetent by two licensed medical doctors at least thst is legal standard in CA. Look up in your State’s Probate Code definition of incompetent and competence for estate planning. It’s different than for contract law under a Civil Code.

And the adult child wants to handle things because they don’t like way parent does with lessened memory but then gets exhausted prematurely. Adult children need to stop rushing to get POA active so long as parent is safe. Memory loss isn’t necessarily unsafe. Take knobs off stove and oven if memory is a concern and parent uses those. They can operate microwave safely most times. Severe dimentia will come about and adult children will not be so exhausted when that time comes to fully care for parent.

If no doctors have certified your parent as unable to care for him or herself, then provide at an appointment a document as I mentioned above for Dr to sign that your patent is able to know his or her family, knows his property, understands nature and consequences of his or her decisions related to estate planning. Then this gives credibility to your parent is able to make a new Durable Power of Attorney or whatever other estate planning. You have a medical document saying they have their legal rights to do so to address anyone who may protest the new POA.

Again, all too often a family member says oh, parent can’t recall things so POA needs to be activated. That is irrelevant to estate planning rights under law. So long as they know who their family is, and all the above I previously stated, they still have own legal rights even if have dimentia.
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