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Financial POA(1)
MinutebyMinute
Posted: Tuesday, August 13, 2019 1:39 PM
Joined: 6/11/2019
Posts: 145


Hey all. How far into the game can you actually get an LO to sign a financial POA ... that would legitimately hold up if challenged?

I had tried several times in the past few years to discuss this rationally with my mom but she always got paranoid about it and shut me down. Most of this year, she's been in and out of reality (and hospitalization) so haven't been able to really discuss. Another family member and I got her to sign a healthcare POA earlier this year when she was having a particularly good day. That approval seemed the easiest of the two to accomplish and one I needed fairly soon to temporarily place her into MC.

Since she is like a pinball from day to day as to where her mental faculties are (memory is ALWAYS faulty in some way but she remembers different things on different days). I found a free online durable POA for financial for our state. I have to have two non-relative witnesses sign and then have it notarized.

What I really DON'T want is to have to seek conservatorship. That is absolutely a last resort at this point. Especially considering I don't (after spending thousands of dollars on her care in past few months) have thousands more to spend on an attorney.

I can't be the only person facing/who faced this challenge. What worked for you?


Victoria2020
Posted: Tuesday, August 13, 2019 4:18 PM
Joined: 9/21/2017
Posts: 705


If you think a financial POA will be challenged that doesn't sound like a DIY project.

 Suggest you talk to an elder care lawyer. They can also advise you on how to be properly paid for her expenses, including lawyer,  out of her funds.


Ferd_Farkle
Posted: Tuesday, August 13, 2019 5:37 PM
Joined: 10/2/2018
Posts: 5


I would recommend getting the advise of an elder care lawyer. I spent an hour with a lawyer and had a very good plan to move forward after the meeting. My parents both had their POA and will in order at the time of their diagnoses. If they did not I would have had to seek guardianship through the state. That may be what you need to do. The lawyer was not cheap but worth the money spent. If she has been diagnosed by a doctor I do not believe any signed document would stand up to a legal challenge.

MinutebyMinute
Posted: Tuesday, August 13, 2019 5:38 PM
Joined: 6/11/2019
Posts: 145


Only person likely to challenge would be her at some point in the future. Not sure how far she could go with it, but she might get the ball rolling. She's stubborn enough.
lizziepooh
Posted: Tuesday, August 13, 2019 7:23 PM
Joined: 5/2/2019
Posts: 117


I hope you get more responses...I am in the same boat as you.

I have thought about this a lot and while having a POA would help in some ways, it does not help in all ways.

From what I understand, the POA would grant me the right to conduct business on behalf of my mother but it does not stop her from conducting her own business which is really the root of all my problems now. As I am typing this, I am listening in on one of her many long and painful telephone conversations of trying to pay a credit card bill - she calls the wrong place, she can't remember what she is doing by the time she gets someone or she gives them wrong information to their questions and I feel really bad for the people on the other end but I can't stop her from doing it. And having a POA wouldn't help in these situations either.

I did however reread the trust document that my parents setup several years ago and I must say, I did get a sense of relief when I realized there is a provision in there about incapacity to serve the trust. So I have a legal option available to me that you do not and I did not realize how much that was weighing on my mind until I felt a load lift from my shoulders when I read that provision. However, I will wait to enact it until I am sure my mom will fail all competency criteria so until then, I do what I can behind the scenes.

I have a spreadsheet of all bills (utilities, credit cards, property tax) and I check them every couple weeks to see that things are paid and not over paid.  If not paid, I pay them through the automatic process. That has worked well for the last 9 months but not so much anymore.

Now I have to get the mail before my mom does because now she reports fraud on her credit cards and they get cancelled and it is wrong because it is not fraud. But I can't change the mailing address or setup paperless because she still calls these places quite frequently. Ugh! And again, POA would not stop her from doing this.

What is the biggest issue right now that you wished you had POA for? Maybe there are other solutions?

As for getting the POA and your mother revoking it later, yeah! that may happen but could she get the paperwork done? And even if she did, would she be able to get the paperwork out to the entities to supercede the POA you gave them? Doubtful.

What a pain in the behind this all is. I feel for you, MbM.

As an aside, how has getting your mom to daycare been recently? I hope it has been easier.

Hang in there and I hope you get some useful suggestions on getting a POA.


janeymack
Posted: Tuesday, August 13, 2019 8:29 PM
Joined: 2/28/2017
Posts: 42


You need to bring her to an elder care attorney and pray she's lucid during the appointment. Have the attorney do all the talking. The attorney and a notary at the firm will make a judgment  that your mom is (or is not) aware of what she is signing, and if they determine that she is aware, AT THAT MOMENT, they will act as witnesses of your mom signing and the notary will attest to that.

My husband and I just did this and we scheduled it for morning so he would be most likely to be "on". He was and all was well. I told him about the appointment the day before so he wouldn't worry and dwell on it or suspect me of something. He started asking me questions, but I told him I didn't know the answers and that the attorney would explain it all to both of us. She did and it went perfectly.

You could make the appointment for you and your mom and your mom could decide what she wants to do after listening to the "whys" and get her questions answered. The worst that can happen is she is not lucid that morning or she is and decides she doesn't want to appoint you POA. 


MinutebyMinute
Posted: Tuesday, August 13, 2019 11:27 PM
Joined: 6/11/2019
Posts: 145


Thanks, all, for making me feel less alone in this. Biggest thing is selling the house that we co-own. Need the money to pay for her care. Doubt I'll even be able to use any of the proceeds to pay for the house I bought on my own last year (and where we live now).

Lizzie -- NO daycare. She threw such fits last week and I've been so tired. I am going to try again on Thursday. Cross your fingers!


lizziepooh
Posted: Wednesday, August 14, 2019 12:06 AM
Joined: 5/2/2019
Posts: 117


 

MinutebyMinute wrote:

Thanks, all, for making me feel less alone in this. Biggest thing is selling the house that we co-own. Need the money to pay for her care. Doubt I'll even be able to use any of the proceeds to pay for the house I bought on my own last year (and where we live now).

Lizzie -- NO daycare. She threw such fits last week and I've been so tired. I am going to try again on Thursday. Cross your fingers!

I have never owned a place so if you do sell it, how much paperwork does she need to sign?Or does she not want to sell the place and that is the issue? Or are you worried about the funds after the sale? 

I think this is greater than a POA can cover and you may need to go the route of getting her deemed incompetent. POA just says you can act as her agent, durable POA means that if she is deemed incompetent you are her agent and it can’t be changed (I think). Is the paperwork you have for durable POA? 

You may need to meet with a CELA. This can affect you in many ways years to come...does Medicaid go after the proceeds if you ever place her? Tax consequences from capital gains and from inheritance when she passes? If you do become POA, the lawyer fees can be paid from her funds. But even if they can’t, the four hundred dollars an hour may be worth it so you place yourself in the best possible position from the sale of this house.

 

 

Sorry about daycare. That sucks. I will be sending you and your mom good thoughts on Thursday. I wish you well.
 

 

Ps: I am not a lawyer but I enjoy reading law stuff so I looked up how the probate court in my state determines incompetency. I figure that is how it will be determined or close to it for my mom so you may want to see what your state says so you have an idea of when it is time for you to do it. Good luck.

Victoria2020
Posted: Wednesday, August 14, 2019 12:13 AM
Joined: 9/21/2017
Posts: 705


Minute by minute- Since real property involved you absolutely need the lawyer's input so you won't  make a blunder that messes up medicaid etc. Not DIY city.

lizziepooh- you say

"However, I will wait to enact it until I am sure my mom will fail all competency criteria so until then, I do what I can behind the scenes."

She sounds way past that from a money management point of view- which is what a trust handles. Money.

 She may still be able to say- I want a first floor apt in Florida not a balcony one in Michigan because I like that side of the family and a walk out garden better but she shouldn't be conducting money business.

Being a trustee and  being conserved- two different things.

I'd call the trust drafting lawyer with her DX and a list of what's she's been doing and ask how to get her removed as trustee.  How to shut down her credit cards.

 Or she could resign as trustee , if sold as "I'm taking the burden off you." Of course she still owns and is entitled to everything in the trust- it just has a new trustee.

 And it sounds like she needs a phone with a limited list of numbers she can call.Non money .

 (Maybe make one a message box number that she can call to leave her business desires-- but it won't go anywhere real- and you can pick up the messages and act on ones that make sense  "Look Mom those checks you wanted with the cupcake design design arrived" ).

 Also, think about a locking mail box (good for your stuff too w/ ID thefts). And sign up for USPS informed delivery to see what is incoming to her, in case she gets something and it goes missing.

Right now, an eager bank clerk could sell her CDs at a negative interest rate and you'd have to take the hit. Please close the barn door now. Not wait until after a bigger disaster.

Your parents drafted the trust just for this situation and picked you. Good luck.

 

 

 


GemsWinner12
Posted: Wednesday, August 14, 2019 12:53 AM
Joined: 7/17/2017
Posts: 334


Forget the lawyers; get a traveling notary and ask for the paperwork that you need. Get an early morning appointment where she lives, and get her to sign.  Google traveling notaries in your city/state, and message them with the paperwork that you need; they will bring it and have three original copies signed.  

Been there, done that.  My Mom has been deceased for about a year now.  


lizziepooh
Posted: Wednesday, August 14, 2019 1:10 AM
Joined: 5/2/2019
Posts: 117


 

Victoria2020 wrote:.

Your parents drafted the trust just for this situation and picked you. Good luck.

 

True but my mother never thought it would come to me deeming her incompetent when she knows very well she is not. Lol!

 

 
Victoria, I can’t disagree with anything you said. You are right on all points. I know it is true.
 

 

But I also know my life has become a life of weighing risks vs nuisances. My mom calling other financial places that already have her personal information is a nuisance more for them and for me but not a risk...except that one of these people will clue in my mom is prey and if they are a predator then she is at risk.
 
I have stopped all calls coming in, risky calls or not. It was too much risk for my mom to be compromised. She was scammed at least three times before I started caregiving and I know I have stopped at least three other attempts since I started staying with her during the day. Now, no calls come in except between a very short evening timeframe.

 

My new thing is I need to stop her from getting her mail because others are at risk. She is now reporting fraud on her accounts where there is none.

 

But the biggest risk to nuisance that I struggle with is when to take control. I am waiting for when she can’t always recall her address or her date of birth. Right now, she can more often than not give you the correct answer. If you asked her what month her birthdate was in, she would not be able to answer. What season? If you asked her what county she lived in, she probably would not be able to answer. Ask her what her area code was, wrong answer.

 

But until I am 100% sure that if it goes to court that she will be deemed incompetent, I will not risk it. Too much at risk for me and my siblings and not enough risk to my mom since I am somehow managing it but barely. Eventually, I will miss something or something will get through that shouldn’t and then it be time to re-evaluate. I wish that would happen sooner than later, it is becoming quite the burden on me and I am over it quite frankly.
 

 

But you are right. She is not competent and this should be taken away. She is a risk to herself.

 

 

It is just easier said than done...unfortunately.
 

Victoria2020
Posted: Wednesday, August 14, 2019 1:57 AM
Joined: 9/21/2017
Posts: 705


From Lizzie:

 "But until I am 100% sure that if it goes to court that she will be deemed incompetent, I will not risk it. " 

 Check with the trust Lawyer. Have him/her explain the trigger that is needed for having her removed as trustee. You'll have to call one day, may as well be now with your legit concerns. You have a duty to protect her assets.


Victoria2020
Posted: Wednesday, August 14, 2019 2:05 AM
Joined: 9/21/2017
Posts: 705


GemsWinner12 wrote:

Forget the lawyers; get a traveling notary and ask for the paperwork that you need. Get an early morning appointment where she lives, and get her to sign.  Google traveling notaries in your city/state, and message them with the paperwork that you need; they will bring it and have three original copies signed.  

Been there, done that.  My Mom has been deceased for about a year now.  

The notary will provide real estate, tax and medicaid advise?

lizziepooh
Posted: Wednesday, August 14, 2019 2:24 AM
Joined: 5/2/2019
Posts: 117


Victoria2020 wrote:

From Lizzie:

 "But until I am 100% sure that if it goes to court that she will be deemed incompetent, I will not risk it. " 

 Check with the trust Lawyer. Have him/her explain the trigger that is needed for having her removed as trustee. You'll have to call one day, may as well be now with your legit concerns. You have a duty to protect her assets.

I already know the steps, they are outlined in the trust document and they are frighteningly not that difficult. Get a doctor to say she is incompetent, have it notarized and and deliver to her by a third party.

 

 
The issue is she will fight it and it will go to court. So until I am sure she will fail, I will not risk it. Right now, it is a working solution, not ideal and not without risk, but it is working. If it goes to court and she is not deemed incompetent, I won’t be allowed back in and then my mom is f*ucked and my siblings are f*cked...me not so much...I would have my very easy life back. Lol!

 

 
I miss that life. Lol!

Victoria2020
Posted: Wednesday, August 14, 2019 7:32 AM
Joined: 9/21/2017
Posts: 705


Lizzie- found this (my final, really)

https://www.californiatrustestateandprobatelitigation.com/04-capacity-undue-influence/fading-star-must-a-successor-trustee-take-over-if-the-trustee-is-losing-capacity/

 

 

One law firm's opinion in one state, but interesting. I like the "Fading Star" phrase.

 

Over and out.


GemsWinner12
Posted: Wednesday, August 14, 2019 8:53 AM
Joined: 7/17/2017
Posts: 334


Dearest Victoria, 

I'm dating a trust and real estate lawyer.  No, he will not provide tax or medicaid/medicare information to his clients.  a CPA is needed for tax issues, and a social worker or medicare/medicaid coordinator will be needed for that piece.  A trust attorney can draw up a will and a trust AFTER the POA is obtained just as I exactly did six years ago for my Mom's estate.  After those papers are obtained, then the trust attorney can go forward with a trust and a will.  There is no need to pay an attorney $400 bucks an hour for something that a Notary can do for a few hundred all-in.  


Victoria2020
Posted: Wednesday, August 14, 2019 10:23 AM
Joined: 9/21/2017
Posts: 705


https://info.legalzoom.com/can-power-attorney-create-will-4156.html

 

 

https://info.legalzoom.com/can-power-attorney-sign-will-3871.html

 


 Guess your state is different.

 


Ferd_Farkle
Posted: Wednesday, August 14, 2019 3:30 PM
Joined: 10/2/2018
Posts: 5


To activate my parents POA I had to have a note from their medical doctor. The note states that they can no longer drive and to activate the POA document. If you could get her to sign a POA document and get a letter from her doctor you might be ok. Selling the house and accessing bank accounts will be difficult but it is worth a try. It is a tough spot you are in.

It has been over a year and I am still undoing the damage that was done prior to my dad's diagnosis. I tried intervening ten years ago and up to a few weeks before my dad ended up in the hospital. I was denied over and over. My dad was to proud to let me help. 


lizziepooh
Posted: Friday, August 16, 2019 11:36 PM
Joined: 5/2/2019
Posts: 117


To Victoria,

I would like to tap into your knack and knowledge of navigating the legal system...

I would like to find out information, court cases, etc in California about a trustee arguing the case against them being deemed incompetent. The only case examples I have found on incompetency and trusts has to do with proving someone was incompetent at the time they signed their trust. I am interested in reading court cases about when the incapacity to serve clause is acted on and then it is contested in court. I can’t find those.

So can you find and send me examples of this stuff? Or point me in the right direction?

You know your way around legal procedures and documents. Is this what you do for a living? Just wondering... curious minds and all that...


Victoria2020
Posted: Saturday, August 17, 2019 3:49 AM
Joined: 9/21/2017
Posts: 705


Lizzie-

Not a DIY project. Rinse repeat.

 Most of these cases have a court reporter during the hearings but no one paid for a transcript and only ones that raise "bigger" issues go farther up the chain where they are published. And I think you are jumping a step.

Your lawyer can  explain your situation to you. 


 
Not a lawyer and not giving legal advise but thinking out loud: who would you use to say your mother should be removed as trustee?

 Her own doctor's statement right? Not driving her to an unknown one right? 

.And Mom would have to hire a lawyer to contest the document you had delivered to her by a third party.

 How does she do making these type of phone calls?

If the form is /delivered mailed to her, are you required to make a HUGE deal of it? Her mail for her to read and deal with, hmm?

You can get her a cash card if she wants to make purchases, but funds limited to what you put on it and it isn’t tied to a bank acct.

Talk to her  trust drafting lawyer:
   have a list of when she was scammed,
   the other factual financial stuff you’ve  run across.
   See how the lawyer says to approach the Doctor unless it is already in her medical chart she shouldn’t be handling money, is it enough?
    how to get the Doctor to notarize the statement or-do you notarize?
     What qualifies as a delivering third party?
      How to advise your siblings, and when.

 
     Case specific, not a DIY.

Trusts are set up to avoid court so if you invoke this clause it is probably  ball-in-her-court to make it go to court.

Doesn’t mean she may not be upset if she figures it out. But better to be upset as a removed trustee than a poor one.






 


leahm
Posted: Saturday, August 17, 2019 1:44 PM
Joined: 2/15/2017
Posts: 32


IMHO you need an elder care attorney stat.  It costs a lot but peace of mind is indeed priceless.  Best of luck.  I am ever grateful to have utilized an elder care Atty at the get go.
King Boo
Posted: Saturday, August 17, 2019 6:04 PM
Joined: 1/9/2012
Posts: 3011


A diagnosis of dementia does not preclude doing a will and DPOA, but the person must understand what they are doing.  Therefore, it is better done earlier rather than later.

www.nelf.org will yield a list of Certified Elder Law Attorneys nationwide.  Interview well.

Here is an excellent post written by a well versed forum member about finding legal help.

https://www.alzconnected.org/discussion.aspx?g=posts&t=2147542672

Everyone needs legal counsel when facing this disease.

Lizziepooh, from what you write, some of what is happening with Mom can be used to your advantage.

The reporting credit card fraud can be used to close that account, thereby removing a credit card you need to moniter.  Most of us have trouble getting LO's to close accounts, use this one to your advantage.  

Reporting fraud on another account, like a bank account - you could easily use this fear to let Mom open another account and place your DPOA name on the account as well - present it as "this keeps your money safe!!!".   

Credit freezes can be placed online with Experian, Equifax and Transunion which will protect them somewhat from fraud, opening up multiple accounts or identity theft.  Run the credit reports FIRST to make sure there isn't a mess to clean up, then freeze the accounts.  You will be given a code to unlock the report in case of need.  

There appears to be a lot of misinformation about what a DPOA can and cannot do on recent threads.  It depends on how it is written, but most DPOA are active upon signing, it is transitional power of attorneys that usually require documentation - although, of course, legal documents can be adjusted for individual situation.   Many people are viewing a DPOA as a verision of HIPPA and it carries much more weight than that.  Usually.


Victoria2020
Posted: Saturday, August 17, 2019 11:39 PM
Joined: 9/21/2017
Posts: 705


There are POAs, DPOAs and if there is a trust - trustees and successor trustees. 

  HIPAA is a healthcare law, not a role.

Kingboo says: Many people are viewing a DPOA as a verision of HIPPA and it carries much more weight than that.

 "While the health care proxy is the one who makes the health care decisions, the person who holds the power of attorney is the one who needs to pay for the health care." from

https://www.t-mlaw.com/blog/post/avoid-disagreements-between-your-power-of-attorney-holder-and-health-care-proxy/

Healthcare proxies and DPOA are two different animals, not a degree of weight.

That's why you need to have a lawyer explain     your     situation , at least once.

  A trust is a separate  legal  entity, managed by the trustee and /or successor trustees. Some trusts may use powers of attorney--most do NOT-- instead the replacement of the trustee is spelled out in the trust document.

  Doubtful an account held in a trust can be closed by a DPOA, the bank/brokerage would be looking for someone with trust powers. And opening an new account, if moving funds  outside the trust, opens up probate, tax issues. 

 And if one of the parents died a long time ago, part of the trust may be irrevocable as an estate tax saving tool or to protect first marriage children , so you need a lawyer to deal with that.

  


Valentine14
Posted: Sunday, August 18, 2019 10:57 AM
Joined: 3/31/2016
Posts: 122


If they have been diagnosed already it is worthless
Victoria2020
Posted: Sunday, August 18, 2019 11:48 AM
Joined: 9/21/2017
Posts: 705


What is "worthless" Valentine14?
Valentine14
Posted: Sunday, August 18, 2019 1:18 PM
Joined: 3/31/2016
Posts: 122


If your LO has already been diagnosed and THEN you have them sign a POA it can be legally challenged.
Victoria2020
Posted: Sunday, August 18, 2019 5:25 PM
Joined: 9/21/2017
Posts: 705


Valentine14 wrote:
If your LO has already been diagnosed and THEN you have them sign a POA it can be legally challenged.

Anything can be challenged, if money is at stake.....

  A Durable POA survives the PWD being incompetant.  POA doesn't.

A diagnosed person can sign documents that are held  valid if the lawyer found them to have capacity at the  time of signing. 

One lawyer our family used had a 2 week rule. Covered the issues. Then 2 weeks later  return visit -quizzed the PWD to see if she understood/remembered  the earlier requests before the documents were signed. And documented the process.

https://www.alzheimers.net/2014-03-25/alzheimers-power-of-attorney/

 

    But anyone can sue for anything.


 
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