Obtaining Power of Attorney if parents refuse to sign? - AgingCare.com

Obtaining Power of Attorney if parents refuse to sign?


My parents are suffering from memory loss issues. In my father's case, he has no short term memory, but does remember things that happened years ago. In my mothers case, she had trouble doing any type of cognitive function. I have asked my parents to sign power of attorney documents in the event they become incapacitated, but my Mother refuses to sign and has talked my Dad into refusing to sign. She wants me and my siblings to do a guardianship when the day comes that they cannot make their own decisions. My siblings and I do NOT want guardianship. My parents reside in TX. Do we have any options here? We have been advised by a general attorney (not elder care attorney) that if none of the siblings want guardianship (which we do not legally) then the state/county will take over. But since they live in Harris County, he also warned us that Harris county ranks near the very bottom in terms of looking out and taking care of elderly people. Is there a legal way to obtain power of attorney so we can make decisions on their behalf if they refuse to sign a power of attorney document? If there is not, does this mean that once they can no longer take care of themselves, the state will step in if no sibling has the ability to accept guardianship?



As we saw our mother become unable to pay her bills (almost losing her house and car), unable to use simple mechanisms such as a TV remote or alarm clock, and eating little else but junk food, my two siblings and I came up with a plan. She was resistant and in denial, of course, so we contrived that my sister would take our mom on a cruise, and because she would be out of the country, we convinced our mom to give me POA to pay her bills and handle her affairs during her absence. We went to the bank with her so I could be added (and notarized) to her account as having POA. We also completed a medical POA, explaining that if she were incapacitated, we would be able to follow her directions with the medical POA. In explaining these docs, we went carefully over and recorded what she wanted, so she felt in control and that we were doing this only to be able to follow through on her wishes (which was true, too). Then Mom went off on the cruise, and I went through her bills, straightened out all her financing, and put everything on auto payment, using the POA. After Mom returned from the cruise, she had forgotten all about the POA, and we explained that all her bills were on automatic payment now. We made light of it, chiming in how all our bills are on autopay, and that's just how it's done nowadays--it's the new digital age. We fibbed a bit, saying that it would give her discounts on her accounts this way. This worked well, as I could monitor everything online from my home 500 miles away. About 18 months later, she could no longer live alone, as she was in poor health from lack of proper nutrition and had been the victim of scammers who stole from her house. With the POA, I was able to handle all the many details of her move to my city and into an assisted living facility nearby. It was an extremely stressful move and adjustment for her--and all of us. But by a month later, she was happier than I've seen her in years. She has been there for more than a year now and is happy and healthy and on supervised meds for her dementia (vascular or AD and virtually no short-term memory and greatly diminished cognitive functioning). Bottom line, the trick is to appeal to the parent's interests and assure them that they are in control, and you are just ensuring with the POA that you can do exactly what they want in case anything happens to them.
Helpful Answer (9)
Reply to SharoninUtah

As far as I know, the only way to be appointed POA would be by your parents. I don't believe there is any other way. Do your parents have a trusted attorney or financial advisor who could talk to them about it? That is what worked for mother as well as me telling her that it was only in case of, for example, a stroke which made her unable to manage her own affairs.

If (when) your parents become incompetent, then the state will step in and appoint a guardian, if family does not petition for guardianship.
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Reply to golden23

What an interesting perspective from that attorney!

He might also have explained that guardianship would give you the authority to remove your parents from their home, place them in a suitably secure facility where they could not pose a danger to themselves or others, sell their property and use the proceeds to fund their care.

This course of action would make whoever took it highly unpopular with your parents, of course; and I can completely understand that none of you is willing to take it on. Moreover, the sheer workload involved would also be difficult to combine with full-time employment - another very good reason for declining it. Fear of being held responsible for your parent's involuntary manslaughter of another person and sent to jail, though... I'd have thought there were more immediate threats to worry about.

Having said that. If your mother is somewhat violent and physical, is your father not at risk? In which case, hadn't you better involve APS as a matter of urgency anyway? If you work with them, rather than waiting for them to be alerted some other way, you are more likely to be able to have some input into future care plans.
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Reply to Countrymouse

I’m in the same boat. I was told that a conservatorship was what I’d have to go for, as my parents already have dementia. That’s NOT of sound mind. So they can’t sign anything legal.
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Reply to HolidayEnd

If your parents are already diagnosed with dementia they can not sign a POA, maybe with an atty present you can get it done. I found out that the state I live in, Az, will not accept a regular POA, in the event of a stroke or some other situation that makes them incapacitated, I would need to have a Durable POA, we just had them sign DURABLE mental health, Health and POA. That way no matter what happens I can be an advocate for their final wishes. My dad ended up in the hospital when he 1st moved to my state, I had nothing in place when this went down, some whacked out hospitalist Dr. put a Do Not Resuscitate order in his chart, I could do nothing about it. I almost had the law called on me as I was not going to not be his voice when he was so ill. So I found out what I thought I needed, regular POA, signed no problem. Then I find out about the POA being invalid if he is incapacitated , so he refused to sign the Durable POA, okay dad, your choice but know this, if something happens to you, i am just going to walk away, i went through hell because i had no authority and i refuse to do it again because you won't sign. I also told him he needs to decide who he wants as he should have someone. I left, 3 days later he asked me if we could go get those papers signed. The thought that strangers will be in control if you dont pick someone did it for him. Maybe you need to ask them who they want and explain that the State will be guardian if there is no Durable POA and Durable Health and Mental Health POA In place.  Just tell them how it will be, this could help.

Good luck on your journey.
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Reply to Isthisrealyreal

I've often sympathised with the awfulness and stress of having responsibility without power.

But if I may say so, you and your siblings appear to want power without responsibility. You want to be able to make decisions on your parents' behalf; but you don't want to be burdened with guardianship and you aren't, either, happy for a poorly performing state agency to take it on (not that I blame you).

Run it by us again, though - what are your reservations about applying for guardianship?

And I agree with others - power of attorney of any sort must be given by the person being acted for to someone he or she appoints to act for him or her; and the person must be capable of understanding the nature of the instrument and its consequences. Even if you hadn't missed the boat, and it rather sounds like you have, there is no way of doing this without your competent parents' individual informed consent.
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Reply to Countrymouse

My mom was "on the edge" of falling into dementia, if that makes any sense. She could no longer pay bills, use the TV remote, etc. but she could "fake it" pretty well.

During the attorney meeting, she forgot the names of her ex-husbands but muddled through the rest. The attorney explained that it only goes into effect when she CAN NO LONGER make decisions for herself. I really played that up so it didn't look like I was an eager beaver. She signed the papers. I'm sure she felt she'd have her mind for a lot longer than I knew she would.

I also had her sign me on to her checking and savings accounts. I explained there was a friend of my husbands who couldn't bury his father because he didn't have enough money. I explained that, at that time, I didn't have that much money either and she would have to stay in the morgue until I could afford to pay for her burial if I didn't have access to her account . That did it. She signed me on as co-owner. (Yeah, I know that sounds like a horrible example but it was true.)

Explain that they call the shots even though you have POA. That will make them feel better and more in control of their own lives. It's only when they CAN'T speak for themselves (stroke) (and dementia but don't say that), that you would step in to assist.

Good luck.
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Reply to SueC1957

Contrary to some of the posts here, people with dementia can sign legal documents. Dementia is not all disqualifying. You don't have to be able to do calculus to be able to sign legal documents. You just have to be sound enough in that one particular element that you are signing for. So someone can think it's 1950 and wondering when Howdy Doody is coming on TV but still be legally able to sign a POA. They just have to know specifically what signing a POA means. A lawyer helps out massively in this case though if it gets challenged. Since a lawyer making that assessment holds up much better than a random witness or a notary.

But to answer OP's question. Guardianship is what you ask a court for if they aren't competent to sign a POA. Yet you say you don't want it. I'm not even sure you could get guardianship. That's a tough hurdle and although their capacity is diminished, your parents do seem to understand what they are doing when they refuse to sign the POA. But that's just my layman's thoughts.
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Reply to needtowashhair

My thanks to everyone for responding. The reason none of the siblings want a guardianship is that the gaurdian wpuld have the same responsibilities for caring for them as you would a child.
That means if they hurt or kill someone inadvertantly due to their dementia, you could go to jail. The attorney who advised us stated that a guardianship should not be considered unless the sibling could take them into their home and accept the same responsibilities for them as you would if they were a child. My mother is somewhat violent and physical, so none of us want her in our homes. She has stated that she does not trust us and wants the state to care for her, but she does not realize that the state will just stick her into a medicaid facility to die. In addition, we all work, and none of us can afford to quit our jobs to care for them full time. Since they have no assets except their house and social security, even if the state steps in, they will only qualify for medicaid. At least with a power of attorney, we can try and keep them in their home and see if the qualify for any financial assistance to keep them in their home. But without having access to their finances, our hands are tied. The attorney stated that if the do not sign power of attorney, our only option is to wait until adult protective services intervenes, but when they do, we will have no control over what the state decides to do with them.
My thanks again for everyone's responses and advice.
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Reply to TXDallas

If Mom and Dad refuse to sign Medical or Financial PoA forms it might be worth seeing if there is a trusted person that can work with them to address their fears (ie. family doctor, social worker etc) and make sure they understand the pro's and con's of guardianship.

At the end of the day if they refuse they refuse.

I would tell them to set up an account to save for the attorney and court fees for the future. Depending on where you live I would request they set aside between $4000-$6000 to pay for both their attorney and the guardian's attorney fees. You or your siblings can proactively apply for guardianship at any time if you are worried about your parent's decision making abilities.

In most cases a public guardian only steps in where there are no family members willing to take on the role. They usually only step in when there is major self-neglect or safety issues. If there are assets, the guardianship office will charge for their services. Public guardianship should not be considered a cost saving alternative.
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Reply to Lizroxy24

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