Can a child of the mother override that POA (durable) with a guardianship? - AgingCare.com

Can a child of the mother override that POA (durable) with a guardianship?

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Question please-my husbands mother is very ill now and has a 50% chance of getting better. She is in the hospital now. She has had mild demntia for 2 yrs now and was in assisted living. A grandaughter who said she did not want POA when the family talked about it but then in a few days after we left. she asked my husbands mom who was confused the entire time we were there to ok a POA. We just found out today! 4/20/16. Doesn't someone doing that have to send out a letter or even a certified letters to the actual children to approve or disaprove of their intent? You have to with a guardianship as I had to do to see if they(siblings of my dad) had a problem with it. Now this grandaughter is saying she can't make the hard decisions about my husbands mothers health. Were we all to get a letter informing us of the POA? Mother is unable to do anything. She knows her name but doesn't even know she is critically ill. Can someone please help? Please!

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As others have pointed out you can demand to see finanical information until the end of time but it doesn't mean the granddaughter has to show you a single piece of paper. I'm betting she is well aware of this fact, too. Getting nasty is only going to make the whole situation nasty. I'd urge you to rethink your approach.
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What is it you need help with, milacan? What specific decisions has the granddaughter said she can't make? Do you want to make those decisions? Does granddaughter want help with those decisions?

Guardianship would take precedence over POA. If there is conflict within the family about who should have guardianship there is always the chance the court will appoint an outside party.

Why do you need to see MIL's financial statements? Is the family afraid granddaughter is stealing from her, or misusing her funds? If you became guardian of course you would see all the financial information, and have to report on it to the court, but as it is, you have no right/need to see it.

Can you explain in more detail what kind of help you need from us?
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I've just reread both your posts and realized I'd missed a few issues. You wrote:

"A grandaughter who said she did not want POA when the family talked about it but then in a few days after we left. she asked my husbands mom who was confused the entire time we were there to ok a POA. We just found out today! "

And "it would have been nice of her to tell everyone. We will just have to try to talk with her and probably demand to see mothers financials she has..."


Perhaps I'm mistaken, but I have the impression that either (a) your MIL didn't ask anyone else or (b) no one else was asked who accepted, or that (c) there's some resentment against the granddaughter, who apparently has some legal background, having assumed this position without telling other family members.

I can't help getting the impression there's more going on in terms of attitude toward the grand daughter, particularly since you feel that she needs to account to other family members for her actions.

Is there some reason to be suspicious of her? Are there other family members who thought they could do a better job and should have been asked? Who got "nasty" about the issue?

As I've written earlier, and as Igloo has also suggested, it's a time to pull together to support your MIL in what might be her last months of life. She shouldn't be troubled by family resentment against someone who's stepped up to assume a responsibility which is going to take up her free time and also bear the resentment or suspicion of the family members. Perhaps she's above all that and that's why MIL chose her.
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Milacam - there's probably a lot of heighten emotion right now for everybody.
If the grandaughter was chosen by yiur MIL to be her DPOA & MPOA and all paperwork in order (& it sounds like it is as she left certified copy for the facilities files), then neither you nor any other family can "demand to see mothers financials". By attempting this all you are likely to do is really get grandaughter peeved as she is the DPOA and it's signed off on & done. If DPOA chooses to share details - both financial & medical - she can BUT a the POA does not have to. She's probably knows her stuff legally or is on speed dial to an atty who does & she has to be all above board in whatever she does as she does not want any problems at work in the AGs office.

If you or other family want to overrule her POA, then you hire an atty to file for Guardianship. It seems to run around 5k to start. yiu coukd contact the atty who dud the guardianship fir your dad if it was not too too long ago. Your having been a guardian before bolsters your position to be named that for your MIL (if you live in the same city/county) but if there is any family infighting the judge will more likely name an interim court appointed guardian so MIL is under ward of the state situation till family work out differences. Judge could name the grandaughter to be named guardian too.

Your MILs in a hospital and going into a NH or free-standing hospice facility is what the future scenario is likely to be, correct? Mom's going to be private pay at the facility, correct? Moms likely never moving back to her old AL, right? Well, unless mom is generationally wealthy, all of moms $ is going to be paid on her NH or hospice facility stay if mom lives long enough. Easily over 100k a year. Some private pay can run 250yr. Mom has already probably spent a lot of $$ for being in AL for 2years. (Btw Genworth does an annual cost of care article on all this that is excellent.) Facility costs are horrendous. Unless mom has oodles of cash & investments, mom -if she lives long enough - will or has run out of money and the DPOA will end up having to do all the paperwork to get mom eligible for Medicaid. If there's gifting or other problems with Medicaid, insurance copays, paying bills, clearing out her AL items, etc., DPOA will have to deal with it.

Perhaps your being there to support MIL to be positive and get well is a better use of your time & emotion at this phase in your MILs life.

Personally I'd be overjoyed that someone probably very savvy and competent stepped up to do this for my MIL.
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Sorry for all the typo spelling. I mean quite not (quit) and the few others spelled wrong. Am so tired. Thank you again.
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Thank you all so much. Since she works in the states attorneys office, I am sure she has both the financial and medical. She left a medical copy yes, certified at the hospital today. She has supposedly been paying her bills too. I know how guardianship works as I did it for my dad. He was completely unable to do anything, so I was it. Yes it is work and a little cash to do it but his went well. Mother is completely incompitent now and I don't expect her dementia to improve in the state she is in. The Family wants to cooperate but it is the grandaughter who won't tell anyone anything about M/I finances especially. I am quit sure she has the financial one too. And yes, it would have been nice of her to tell everyone. We will just have to try to talk with her and probably demand to see mothers financials she has, how she pays the bills, etc. Thank you all so very much. I just wish some families could talk about those things without someone getting a bit nasty. Bless all of you!
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Mila, you've asked the same question twice, here and at the end of this post:

https://www.agingcare.com/questions/form-to-create-durable-power-of-attorney-199727.htm

I'm copying my answer on that post below, so the answers can be consolidated instead of spread out on 2 posts. It'll be easier for you to read them all together. And it's more helpful for people to answer to know what others have suggested.


Mila, someone executing a POA does not need anyone's permission to do so as long as he/she is capable of making decisions. The children have no authority to approve or disapprove of a parent's choice. Guardianship is a different situation.

If the POA contains a provision authorizing the granddaughter to select someone else if she feels incapable of acting, then she can do so. If there are alternate proxies named, they can act without the need for a new POA. Otherwise, if your MIL is not able to understand executing a new POA, the only option I can see is applying for guardianship.

However, there's another alternative and that's for the family to come together to support the granddaughter and assist her in making decisions. It's cheaper and easier to deal with, if the family can cooperate, than paying the cost of guardianship, getting a court involved, and filing the necessary pleadings and reports with the court.

However, you write the granddaughter cannot make the necessary decisions about your MIL's health. If the POA is a financial/legal one, it doesn't give her the authority to do that, whether she can or can't do it. Only a medical POA, a/k/a Living Will, can authorize medical decisions.

So the questions are (a) is the POA executed a legal/financial or medical one? and (b) If it's not a medical one, has your MIL ever executed one?
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Milacan - first off, sorry but no, no formal notification of POA needs to be made. A POA must be done while the principal is competent and it must be notorized. That's about it. Some states have them recorded/filed, others don't. Second, yes a guardianship typically overrides a POA and is usually all encompassing but variations can be made - it all depends on how it is written up and then approved by a judge in a court of law.
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No. Notification of anybody is not required. Only time notification is required is if she decides to resign as POA. Though it would have been better if someone had told you. Guardianship would override the POA and is quite expensive to complete. The POA may have a successor defined by mom. Have you seen the POA? A POA is not simply approved it has to be prepared by an attorney, signed and notarized. If you decide to pursue guardianship how would POA feel about that? How would mom feel about that? Ask to see the POA? Do you know what attorney may have prepared it?
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