My older brother was able to retain POA over my dad with his consent. My other brother filed the exact same papers. Can he legally do this? - AgingCare.com

My older brother was able to retain POA over my dad with his consent. My other brother filed the exact same papers. Can he legally do this?

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My other brother took my dad out for a day & didn't return him home. We later discovered that the other brother & his wife, filed the exact same papers as the older brother. Can he legally do this?

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Yes. He can do this.

A POA can be removed if, there are expenditures or medical decisions, that appear to be suspicious and not in the best interest of the father.

Is there a will, that has been recently changed? That could be deemed undue influence.

Have bank accounts once only in your fathers name suddenly been put into joint name with the first POA with him designated as POD or sole beneficiary of the account.  That may also be deemed undue influence. 

In my work, I have seen that many times, when someone wants total control over a parent, they will try to act as if they are an altruistic caregiver, when the reality is that they want to change the will or the beneficiaries in ways that only benefit them or their family.

They often justify the changes by convincing themselves that they alone deserve the money because they are acting as caregiver.

Care taking an elderly parent should not be done to feather one's own nest or to live rent free in dad's home, it should be done because the parent is loved.

Otherwise, use the parent's money to put them in an assisted living facility.

If a POA is deemed to be self-dealing, it can get ugly for that POA, fast.
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Reply to Heather10
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DadsSon, I'm envious, and I'll bet you are too, of how well PrairieLake and her siblings work together for their dad's benefit. Under difficult circumstances, not only did they do everything well, but they were able to get a bargain price in getting legal guardianship (I suspect by doing a lot of the legwork themselves).

PrairieLake, well done. I think/wonder if your dad could be blocked from being able to revoke his healthcare POA by having his doctor sign a letter stating that he is mentally incompetent to do so and that he would be endangering himself and possibly others if he were to leave the nursing home. But I also know that nursing homes are typically not lock-down facilities, so that's a bit of a conundrum. Also, with a doctor's letter stating that your dad is incompetent and given how well you and your siblings work together, I think it might have been workable for your dad to not have a guardian, but since you were able to do guardianship for so little cost, it does seem like the best thing to do.
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Reply to bicycler
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The only thing you can do to override a POA is to get guardianship. The cost of this can be deducted from Moms money. In your instance, you may have to put out the money and then reinburse yourself when you are granted guardianship.
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Reply to JoAnn29
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Not sure about other states but in NJ there is no "filing" of papers. Filing means the County Clerks office will file the paperwork like a mortgage. That is not how a POA works here. I took Mom to a lawyer, after Dad died, to update her will and while there she had a POA drawn up. She signed in front of a witness. I don't understand how papers are drawn up without the person assigning the responsibility present. There were questions the lawyer asked Mom. It was pracically a living will. And to have a hospital or facility get involved...I really believe this is where abusing a POA comes in.

I would find out who the lawyer was who drew up the papers and inform him that it's documented your parent has Dementia/ALZ and is not able to make informed decisions. The second brother has no leg to stand on if first brother can show POA assigned to him.

Just curious, as caregiver why did you not have parent assign u as POA?
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Reply to JoAnn29
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I have healthcare POA, with one sister as the second on the list and another as third on the list. My Dad signed this last year in the hospital with a social worker and another staff member doing it with them. They were able to determine that he was competent to make his decisions. We were not in the room.
Now, 9 months later, Dad took a taxi to the hospital for some “procedure”. He was found wandering in the hospital, confused and delusional. Evaluated and determined to not have the capacity to make his own healthcare, living arrangements or financial affairs.
However, now we are in murky waters. While we are in the process of filing for guardianship, the nursing home said Dad could revoke the POA at any time, and they could not keep him there against his will if he walked out.
In order to get guardianship, we (7 of us siblings) have to file in probate court, and if there are disagreements about who will be the guardian, the court will decide. There has to be a background check completed, and the rest of us siblings have to be notified of the court proceedings. My older brother volunteered to take this on, and the rest of us signed a document that we agree. (I have wonderful siblings even though we had horrible childhoods due to our Dad’s behavior).
Then when this guardianship is approved, my brother has to take a 1/2 day class about his responsibilities. Since I live in another state, and I would have to be there quickly to make decisions, I am not able to do it.
We met with an elder law attorney, who charges $295 per hour for one hour. He explained everything, and then is helping us with the initial paperwork.
The final cost will be about $700, which might be able to be paid out of Dad’s SS check if we need to spend down to get under 2000$ for Medicaid.
If not, that is money well spent because we did not know how to do anything, and Dad had us all divided and intimidated.

So, to clarify-I researched and called an elder Care attorney first, made an appointment-told all my siblings where, when and why I was meeting with the attorney. All that were able came. They were all able to ask questions, express concerns, and get the ball rolling.
Hope this helps-any member of the family can do this, even if someone has POA because it settles all the different opinions-let the court decide who is best able to handle this.
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Reply to PrairieLake
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Your Dad has dementia -- is he able to understand the concept of appointing someone to make decisions on his behalf? Does he know what is going on? Did he sign both of these documents? Was a lawyer involved in either case?

Are these two brothers in conflict over Dad's needs and care? Was this an accident -- the family is in favor of getting the POA in place, and both brothers took it upon themselves to arrange that? Or was this duplication deliberate?

Is your dad home now? Just what is his residence?

It is certainly illegal to coerce or trick someone to sign documents against their will. If either (or both) brother did that, they were breaking the law. It is not illegal to sign more than one POA document. Your dad did not break the law. But unless the second document revokes the first he did create confusion!

Is the family generally dysfunctional? Do family members disagree about what is best for Dad, or are there some ulterior motives involved here? Would a family meeting be useful, or just produce WW3?

Would it be possible for the two brother and Dad to visit a lawyer and work out the best way to appoint financial and medical POA?
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Reply to jeannegibbs
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DadsSon, welcome to the world of family dysfunction and sneakiness in which many of us reside. The simplest answer to your question is: If your dad has not been declared incompetent, then, yes, he can sign as many new POAs as he wants. If a new POA does not revoke any and all prior POAs, then he will have multiple, equally valid POA agents, which sometimes works, but often does not, and given the sneakiness that was involved in your dad's case, I'm pretty sure it'll be a disaster for his health care and finances. Even if you believe your dad was incompetent when he signed the 2nd POA, or even the 1st, one or both POAs would still be valid unless you could prove otherwise to a judge, which often is a hard thing to do, especially as time goes on.

It sounds like its past time for a family meeting with a profession mediator to try to iron out differences of opinions. But, at this point, unless your family is more reasonable than many, either a family meeting won't solve anything, or, more likely, the members who really should attend will refuse to do so.

The next step in seeking resolution of how to ensure your dad's best interests are met now and in the future is guardianship and conservatorship. G&C voids any and all POAs, durable or not. The G&C process is costly, but sometimes G&C is the only solution when adult children are dysfunctional or are looking more for an inheritance (or theft before an inheritance) than they are for the safety, comfort and well-being of parents.
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Reply to bicycler
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DadsSon, which brother has the newest Power of Attorney, brother 1 or brother 2?

If your Dad is still able to make decisions, then Dad can elect whomever he wants to be his Power of Attorney. It could be maybe Dad thought he could have 2 POA's, which he can, but those names needed to be on one legal document, not two separate documents.

If your brother didn't return Dad home, where is Dad living now? Or was Dad brought back to his own residence?
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Reply to freqflyer
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I would think that if Dad is cognizant of what’s going on and he appointed Brother 1 as POA, Brother 1 is the legal POA. Brother 2 can file all the POA papers he wants, but if Dad appointed Brother 1, that who holds the Power of Attorney. If Dad wants both brothers to have co-POA, he’d have to approve that as well.

On a side note, where did Brother #2 take Dad when he didn’t return him home? Was Dad on board with this change of plans? Was anyone notified where Dad was? If it was done in secrecy and Dad wasn’t on board with this or if he requested Brother #1 be called and informed of his whereabouts and he wasn’t, that could be considered kidnaping.
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Reply to Ahmijoy
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