If Mom is incapacitated or a medical decision is needed, what will we have to do to make decisions and/or gain access to her money to pay her expenses. If she passed, can we sell her house? She wrote a will herself and had it notarized. I think everything’s split between 4 kids but I haven’t seen it. Her husband just passed. Thank

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Is there a POA assigned? if so, you can write out bills, etc by signing your name with POA behind it.  Some places may ask for a copy of the POA (like the bank).  I am POA for parents and I take care of all their bills for the last 6 or 7 years.....always signing my name with POA.  never had any problems.  Now as for having your name on her checking account......I would suggest not to.  Our elder attorney said that IF my name was on my mothers account and she died............I would have to pay a portion of inheritance on that money because the bank has no idea how much was mom's or what was mine.  So check with an Elder attorney on that matter and also POA stuff.  I wish you luck.
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Reply to wolflover451

If you can convince your mom to get a geriatrician and have them help out with your mom's next level of care or next level of life. They can talk about Goals of care - ex: if you don't want your kids to get involved with your finances and you become incapacitated do you want to be in a Nursing Home? or you want to be home with 24/7 Aide? If you don't have plan in place and if you need 24/7 support the hospital will discharge you to a nursing home.
If your asset is structured properly by the Lawyer you can avail your county's resources like Aide waiver----than having to pay for guardianship, probate and more---
I heard its not cheap and very stressful... Pray that your mom will have more wisdom.
Hugs and prayer.
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Reply to Caregiving2020

Imho, with no PoA, if mom becomes incapacitated, you would have to get guardianship through a court of law. Prayers sent.
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Reply to Llamalover47

If she won't let you have access to the bank account, you're probably going to have to wait until that acct is part of probate (after death) and divvy it up along with the other assets. If she passed, you do the probate with the will. Assets are distributed according to the will and then the house could be sold - as long as everyone who gets the house agrees to it. If you know it won't be agreed to, you could ask the probate judge to address that during probate - me might agree to do order to sell and divide the proceeds.

Medically, you could ask her about what sort of care she wants if she can't talk. Then have the appropriate forms ready - tell her if she doesn't put those wishes in writing on the form, the drs who know nothing about her would make decisions for her. You could also ask her about how her drs and bills would be paid if she couldn't talk and was recovering from a bad illness - and have the POA form handy to be signed. If mom still won't budge on these issues, you're pretty much stuck until such time she recovers from illness or passes away.
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Reply to my2cents

If your mom has all her mental faculties then there is nothing you can do.

You might let her know that it would make things so much easier if she would add you own her Bank Acts as POD...your mom might not understand that a pod is payable upon death.only and you can't do anything with her money until she has died.

The Will will go to probate and after you'll just need her Death Certificate to get her money, sell house and car ect or whomever she leaves as Executrix of her Will
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Reply to bevthegreat

Holographic wills must meet specific standards to be considered valid. Do you know if your mother researched Virginia requirements for validity of a holographic will?  If not, it could be challenged.  This is the statutory link for holographic wills in Virginia:

I admire someone with your mother's strength and tenacity.   For the time being, I would think in terms of insuring (to the best of your ability) that the will is valid, and that whatever other actions she's taken are, to the best of her ability, actually benefitting her. 

You might also gather data on the house and her finances just in case something does happen and you have to step up.  

An example:   if you don't have access to the house legal description and any potential encumbrances, ask the county recorder's office to help you get a legal description, then get copies of the deed to her home, any and  all encumbrances, and or documents of records .  

If there's a mortgage, you'll at least know who the mortgagee (lender)  is.  If the mortgagee has assigned the mortgage, that would be recorded as well.   If anything happens that she can't make mortgage payments, you can contact the mortgagee, provide ID verifying you're her daughter, and get information on payments to ensure the mortgage doesn't go into default.

And you can ask if she needs any assistance or research that you could do?   I think working with her at this point will yield more positive results than pursuing a course of action requiring delegation.   She's just not ready to do that, unfortunately, but be prepared for that time to come.  

I think that, given your father's death, she may feel the need to ensure herself of her ability to carry on w/o him.   That's not surprising.  And as an alternative to "what do I do now???" approach, of anxiety and possibly fear of being on her own, even though she has you and your brothers, she's attempting to structure her life to do that, be on her own and make her own decisions.  Kudos to her for that confidence and initiative!

Another thought though is a DPOA that limits authority to specific issues, rather than something very broad in nature.

Sometimes something happens to an elder and it suddenly becomes "wake-up time", and the need for supportive documentation becomes critical very quickly.   You might think in those terms, and plan various courses, i.e., how to get guardianship ( which I wouldn't recommend not only b/c of the cost but because you might not be the chosen guardian), storage sites for her financial information (lock box), etc.

In  fact, you might get her a fireproof lock box and make a duplicate key before giving it to her.  It's kind of sneaky, but it's a good way to provide access to data you need.
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Reply to GardenArtist

Mom2Max, my parents Will and Power of Attorney documents were older than dirt. I kept suggesting to Dad that those legal documents needed to be updated to reflect current State laws [I had a copy].

I finally got Dad's attention when I had to use what is called a "therapeutic fib" by saying that the way their Will was written, that the State would get half of their assets. IT WORKED!! Dad had me set up an appointment with an Elder Law Attorney. Whew !! What a relief that was.

Later down the road, my Mom had passed and Dad decided it was time for him to move to senior living. And it was time to sell the house. I remember when I presented the financial Power of Attorney to the Title Company [in case my Dad didn't want to be at settlement], the Company was glad that the POA had the full address of my parent's house listed. That one sentence was soooo very important.
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Reply to freqflyer

She is wise not to sign a person onto her account. If the "other person" has financial problems, her account could be drained to cover their debts.

If she is incapacitated, then the "next of kin" gets to decide on the matters you mentioned. Talk to her doctor with all family members who could be considered "next of kin" to make the needed decisions. However, most financial institutions want a POA. If she can streamline all her bill paying to automatic online paying, that would help make sure bills are paid without the need of a financial POA. Just be aware that nothing can happen to her accounts until after her death..

Please check with a lawyer in her state to see if her will is "legal" in her state. It should have a designated executor who will liquidate and distribute her assets per whatever is outlined in the will.
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Reply to Taarna

If she passes, you can’t sell the house until after you or someone else has gone to court & been appointed executor. The will can designate an executor but that person doesn’t have to take on the responsibility and if they do, it still has be assigned by probate court.
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Reply to worriedinCali

If Mom is incapacitated a Social Worker in the Hospital can help you with getting a temporary guardianship. Later that can be made permanent if need be.
The will comes after the death. The will will have an executor appointed. That person will gather in the estate, distribute any assets as the will dictates. Does you mother have health care wishes? Does she have Dementia? Is there a Health Care POA? An advanced directive? Has Mom told anyone who she wishes to be the executor on the will, and does that person know where the will is? All things to get answered now if you are able, and if not, the Hospital system will find the next of kin and will get someone assigned temporary guardianship if needed. Good luck. So sad and so much more difficult when these things aren't taken care of in a timely manner.
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Reply to AlvaDeer

First thing is get a copy of the WILL so you know what she has planned. She has most likely assigned a trustee.

Who can sell the house etc should all be spelled out in the WILL.

If the WILL is not clear each state has rules as to how things go between immediate family members which you are. Google your state or consult an attorney.
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Reply to lacyisland

Does she distrust you and your siblings or is she just not ready to think about her own mortality? You might want to give her a little breathing room if she's still mourning. When she's ready, she can always put the house in a trust. That will save time and help you avoid probate if you're left desperate for funds when she passes. My mother did that; it took almost no time and two short meetings with a lawyer. You really should talk to her about a durable medical POA and her wishes about extreme measures. Suggest that the child least in need of her money (or the executor) be the cosigner on the bank account. Explain that this is just to make sure the bills get paid if she gets sick or hurt. Be gentle, and give her a little time to grieve first.
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Reply to SFdaughter

Holographic wills are recognized, ESP if there is not much in the 'estate'. Lawyers can smell money a mile off (I get to say that b/c my son is a lawyer and I know how he acts)

I encouraged my MIL to get her affairs in order about 15 years ago. She did, but only b/c I think I terrified her that her 3 kids couldn't just split things 3 ways--there was nothing to state that's what she wanted.

Just found out (among with my many, many mis-steps with this woman) that she felt I was trying to manipulate her into leaving ME 1/3 of her estate. She did make the will, but I am not to receive ANYTHING. So, when DH receives his inheritance, somehow I am not to benefit from it.

People are so weird.

She has DH and his older brother as POA's and told him she lives in 'deathly fear' everyday that he and his brother will throw her in a ratty nursing home. DH said if she felt that way, to change her will to make sure her only daughter is in charge.
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Reply to Midkid58

Starting with the last, first, the will will have an executor. The executor of the will is responsible for gathering the assets, filing in probate court, paying last bills and distributing remainder of estate as directed by the will, and likely with the help of an attorney who will help legal matters.
If incapacitated it will likely come through a medical issue. If your Mom is hospitalized the Social Services will contact next of kin and help with an application by phone to a judge of "emergency temporary guardianship". This can be made permanent guardianship with the court eventually. The guardian will then direct all legal, billing, financial, health issues while Mom cannot do so. If there is no hospitalization and Mom is in unsafe circumstances and still alone, a call to APS with help with these same matters.
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Reply to AlvaDeer

A notarized handwritten will is legal, as is one written on a napkin. (They're called holographic wills.) However, they're also the easiest ones to dispute in court.

The best thing this family could do for Mom this Christmas is to pay for her to have the services of a trust and estate attorney to set up durable POA, an Advance Medical Directive, a will, and a trust. The attorney will go over all the items with her, will explain that the POAs don't go into effect until she's incapable of handling her affairs, and will help her protect her assets while she's still alive.

She may just be overwhelmed by the immensity of it all, so help her by getting her to an attorney.
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Reply to MJ1929

With no PoA and if your mom becomes incapacitated there are only 2 paths:
- the family spends a lot of time and money to pursue guardianship through the courts
- the county pursues guardianship

I have read on this forum from those who have experience that when family pursues guardianship it can cost upwards of $10K. And then in court if the judge perceives family disagreement or infighting or power struggling the judge can then decide to award guardianship to the county anyway.

If the county gets guardianship they control all of your mom's medical decisions, what facility she goes into and her assets, including her home and any material things. When she passes the family (next of kin) will get a summary of how her assets where spent by the guardian. There is no guarantee that there will be ANYTHING leftover to "inherit" at that point. The guardian is not legally obligated to share any financial info with family while she is alive (and trust me, they won't tell you anything). You will be dropped from joint bank accounts. If they put her in a facility that is too far away they will try to accommodate family in that regard, but she probably won't be going into a "nice" facility -- probably a Medicaid one run by the county. This is how it went for my stepFIL when the county gained guardianship of him.

Dementia, loss of cognitive and judgment abilities, happens gradually. Your mom may make some very ill-advised and illogical spending decisions before she is so bad that APS needs to come in to take over. She will be very vulnerable to abuses by the financial predators of the world.

All you can do is explain to your mom about her choices of who she wants to make decisions for her when she can no longer make them herself: her family or a soul-less guardian? THere are people in the world who are just in denial about aging and dying. THere isn't much you can do about it except make the case to her and also by being an example of it yourselves, by creating PoAs and Living Wills yourselves and then asking your mom why she isn't doing it.

At the very least your mom should create a Living Will so that she can remain in control of her medical care decisions should she lose her capacity due to an accident or illness. Otherwise (and depending on her state's laws) it will default to next-of-kin (and if there are more than one adult child this is also a precursor to family strife if there's not agreement on treatment for her).

Do not fall into the trap of expecting any inheritance and operating from that center point -- it will only cause a giant rift between you and her and between individual siblings and family members.

In the end your mom is a fully grown adult making her own decisions (for now). All you can do is reason with her and present your case for making preparations for worst-case scenarios. I wish you all the best and no family strife.
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Reply to Geaton777
MJ1929 Nov 19, 2020
A Living Will isn't legally enforceable and gives the person zero control over their medical care if incapacitated. It's just a document with someone's wishes, but doctors can and will do what they feel is medically necessary. A medical POA with an advance medical is the only way to go.
Let mom know that the state will decide what becomes of her possessions as her estate winds through the probate process. You can read about dying “intestate” meaning without a will, hers may or may not be recognized, and what the process looks like then. You won’t be able to sell her house until this long process is complete. Getting access to her bank accounts will be a total pain. Likewise, if she can’t speak for herself on medical decisions, medical professionals will do every possible life saving treatment, no matter how little chance of success or how cruel. This includes breaking her ribs with vigorous CPR and many other procedures. Let mom know her lack of trust in placing her affairs with anyone will make everything more difficult for all involved, likely including her. Ultimately you can’t force her to do anything, but hoping for you all that she sees the light.
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Reply to Daughterof1930

That will she wrote herself will have to be brought to the probate court in her town. If they accept it, then whoever she named as executor will be responsible for paying her debts. You will not be able to do anything until that will gets examined by the probate court and if they find it legitimate. I would show it to them now because a notarized will that she wrote up herself might not even be legal. If I were you I would speak with your mom about taking a different approach, because how she's doing things now will really leave you and your siblings in the weeds when she passes. If she were to pass now, her funeral expenses would have to be paid out-of-pocket by her family and there would not be reimbursement until her estate is settled. If there's no POA for financial or health decisions, then the hospital and state will decide what her treatment is if she gets sick and whether or not she goes in a nursing home. Then they will have full control over her and her assets. Explain this to her and she'll probably change her mind about refusing to do a POA and a legal will with a lawyer.
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Reply to BurntCaregiver

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