POA of my significant other was written 10y rs ago. Has anyone had to have a competency test to prove before it gets into a legal battle?


My significant other of 25 years is having short term memory and mobility problems. He is not incompetent, but his son who is POA has given a financial firm (Morgan Stanely) a statement that SI has a diagnosis of dementia. The POA has taken over all control of his assets in his account. I know the POA can be revoked, but I believe he will contest it and claim he is incompetent. Since we never married I have no legal standing. Has anyone had to have a competency test to prove before it gets into a legal battle?

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I am not sure. His son is POA from a legal notarized form from 10 years ago. I was the health care proxy listed back then. I believe there is a new form at the hospital where he last had a seizure episode in January. I believe his son got his name on that one too. I am going to check tomorrow, how I can go about changing that one. We also are finding out that some of his memory and other issues are related to a UTI, he has been on antibiotics for a week and does seem much better. I am just trying to have all good information etc. before we (bud/elder care lawyer) revoke the 10 year old one and then create a new one. Thanks again, will continue to update and probably more questions as we move forward.
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Thank you Frogmore for coming back to give us an update. It’s very beneficial for the collective wisdom
Of this forum to know what the outcomes of these issues turn out to be. I’m glad your SO is doing what he can to protect himself. It doesn’t seem appropriate based on what little we know that Morgan Stanley could receive this information without SO permission. Did your SO have his son on his HIPPA form to be able to receive information? We learn from one another on this forum so I appreciate the feedback.
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Hi to all..Thank you for the notes/answers. We do have an Elder Law attorney helping us, we have spoken to him twice. The only diagnosis given to Morgan Stanley is a form (provided by Morgan Stanley) from Neurologist saying he has a diagnosis of dementia, no further information. He is going to a Memory and Alzimers Rehab Center next week for testing. Hopefully this will let the Fraud Department of Morgan Stanley see that he is not incompetent, he may have some memory issues, but he is 81.
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Let's separate a few issues here....

Who signed the alleged statement of dementia? Was it a physician? On what tests was the decision based?

If you've seen the POA, what does it specifically require for a determination of incompetency (i.e., statements by 2 physicians and/or 1 physician and a psychiatrist)?

Is the son the sole proxy pursuant to the POA? Does the document give him authority to engage a financial firm to manage accounts? (Ones I've seen usually contain similar clauses.)

Has anyone discussed the management fee by Morgan Stanley? Back in the late 1990s I worked for a firm with an estate planning and management practice. I had the opportunity to see statements from a firm allegedly "managing" someone's financial affairs. I recall the management fee being 6 or 7% of the assets, on an annual basis.

So expect that whatever funds are in the accounts Morgan Stanley is "managing" are going to dwindle by the amount of their management fee. And those are funds that won't be available to your SO.

Do you know if the so is aware of the management fees?

Shane raises some very good points about your role in the asset management. And Jeanne and others raise good points about the level of any dementia. This needs to be addressed, ASAP.

If I were you, I'd find a good attorney skilled in estate planning, asset management, and possibly co-mingled, contested asset rights, hopefully in a firm with a matrimonial practice as well so you can clarify your rights in this situation.

And how does your SO feel about the whole situation? Is he agreeable to forking over what I would consider a generous fee to Morgan Stanley to take over management of his assets (which I'm suspecting must be significant as I have a vague recollection that advisors don't take over assets of "nominal" value.)

If you have a good relationship with the son, it also wouldn't hurt to find out what rearrangement Morgan Stanley plans to make - is it going to invest in high risk assets or "widows and orphan" assets? If Son isn't aware of the danger of speculation with someone else's assets, he needs to be as those assets could be poorly invested. And remind him that it wouldn't hurt to review Morgan Stanley's role and actions during the financial crisis. Some of the big Wall Street firms were on precarious financial ground b/c of their decisions.
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Frogmore. What does your SO think about what his son has done?
Your SO mental capacity is not likely to improve so if he intends to contest the sooner the better.
Are you saying Morgan Stanley required no proof other than SO son’s word that his dad is incompetent? If your livelihood is threatened you should not hesitate to seek legal counsel. Have you been handling the financial affairs up to this point?
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The simple diagnosis of dementia does not disqualify a person from making or revoking POA.

Is your SO able to understand the concept of giving someone the authority to act on his behalf? That is all it takes to be able to change a POA. The lawyer came to our house, went over the document with my demented husband, then asked him if he understood what it meant. He said, "It means Jeanne can make decisions for me when I can't make them for myself." She asked if that is what he wanted. He said yes. That was all it took. It didn't matter that he couldn't remember if he'd had breakfast, or that by tomorrow he wouldn't remember that the lawyer had been there. At the time he signed the document he demonstrated that he knew what it meant and that he agreed with it. Mobility problems have nothing to do with competency to assign or revoke POA.

Your SO originally designated his son as POA. Is he still OK with that? Or would he prefer you to be his POA? If he wants to switch I suggest you use an attorney specializing in Elder Law. Since there will possibly be conflict over this, it is not a good project for DIY forms you can download.

Let us know how this works out. We learn from each other.
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Are you beneficiary for any of SO’s life insurance policies, if SO has any?

Do you both own the home you live in? Are you on the deed? On his joint checking acct/savings accts? 

I just hope you are properly listed as Co-owner with any asset of your SO future estate. After 25 years you should be recognized almost like a spouse, but if your SO did not take steps to list you as partner/spouse it may be difficult for your SO to change his POA but can be done if he is mentally competent.
I hope you and your SO’s POA have been getting along all those years and the POA won’t throw you to the wind. Of course, you may have your own assets as well & not have to worry that you are not POA
I am certain others will answer your post with much more knowledge than I.
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