Already have DPOA etc. -- should I petition for guardianship? -

Already have DPOA etc. -- should I petition for guardianship?


Mom is 85 and has advanced dementia -- though she is healthy and doing well. My husband and I take care of everything for her. Manage all of her bills and accounts, meds, doctor visits, grocery shopping, manage home care companions, have her overnight at our house often. Have handled everything for 6+ years.

I have a DPOA, medical directive, my name is on her bank accounts, am executor on her trust, and appointed fiduciary for VA benefit. Obtained letters from both of her doctors (PC and neurologist) attesting to advanced dementia.

Previously I worried my sister would get mom really confused and worked up and try to change her trust so I wanted to establish Mom is not competent to make changes. Think that is much less likely now but is in the back of my mind. Lovely sister hasn't seen Mom in over a year and contributes nothing but criticism.

My thought was that you basically become her acting executor once she is deemed incompetent. Is that correct? Is it the same as guardian?

Because Mom is not competent to handle any of her affairs, should I take the next step to be appointed legal guardian? Or is that really complicated and I should just leave it as is?

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I already have a dpoa over my mom's interests,but she still has one piece of property she's renting and need to have that in my name to protect her from outsiders wanting her to sell it to them.So I need to have total guardianship over her interests in Texas.Any suggestions as to speed up this process..since it does take a long time to do this??
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Yes, thanks, we did visit the attorney yesterday. All our paperwork is extensive and I don't need to pursue guardianship. Made sure he has the two incompetence letters on file from the doctors. Can all be confusing but think we're ok for now!
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Luv, it seems to me you have things well in hand and I think it's a good idea to get the incompetence reports to the attorney. I see no reason to also get guardianship.

PMm, I saw that you posted this question but couldn't figure out your post. As to the basic question, no you cannot get POA if a person is mentally incompetent. You'd have to file for guardianship and that can be complicated and costly.
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is it legal to have poa papers drawn up after your parents become incompetent
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I presumably am the 'trustee' then. Was not aware becoming legal guardian would be expensive. Initially, I just wanted her attorney to have the dementia letters on file so that it is clear that she is not capable of making changes should someone try to bring her to his office.

I don't recall posting about this before -- unless I asked a question last year maybe. Last year was a blur...

Thank you, I will read your post a couple of times to absorb it all!
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Luv2Travel, this isn't a criticism but hopefully a helpful explanation on terminology.

Trusts don't have executors; a trustee manages the trust, and it can be done by the person who created the trust during his/or her lifetime, or it can be a relative, friend, or professional trustee. After death, the Sucessor Trustee assumes the responsibilities.

So depending on the specific provisions of the Trust, the Trustee can act on behalf of the Settlor (person who executes the Trust) now or after death.

An executor or executrix, now called Personal Representative in Michigan, is responsible for carrying out a will after the testator's/testatrix's (person who makes executes the will) death. That person does not have authority to act under the Will until death.

Therefore, it's not possible for someone to become "acting executor" once a principal is deemed incompetent, since the executor/trix only has authority once the person has died.

The executor is not the same as a guardian.

If you're proxy under a DPOA, Trustee or Successor Trustee under the Trust, I'm not sure what would be gained by pursuing guardianship. In addition, you'd have to deal with court jurisdiction, pay for the cost of becoming appointed as a guardian, assuming your sister didn't challenge the proceedings, and be responsible for filing reports with the court. What would be gained?

BTW, I am positive that I've seen this post before; the facts are so similar.
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