Make sure that once a loved one is diagnosed with Alzheimer and BEFORE they become incompetent, that when you have the Durable Power of Attorney drawn up you do this is an Attorney, these do it yourself POA would not be a good idea at all, I would say NEVER try to do a POA without and Attorney. The fact that an Attorney is involved would help to show they were competent when the Durable power of attorney is made.
When and IF you apply for Medicaid the question will be asked if the patient is competent and by the time you are having to place the answer will of course be no, it does not matter that they have not yet been deemed incompetent by a Court of Law, Once you have to answer yes to that question, the Durable Power of Attorney has to be examined by a Court to determine if it was drawn up while the patient was still competent and also to determine if it is a valid POA. Even with one drawn up by an Attorney I would wonder if the Doctor Statement of when the incompetency began would correspond with when the POA was drawn.
If the Courts find the Durable Power of Attorney not valid for any of these reasons then they will proceed to appoint a Guardian for the loved one.
This is just something else you might think about along with all the other worries involved with this disease.
Thanks Jane, for this very important information. I remember when I first starting thinking about obtaining POA, I had people tell me that I could go on-line & complete the form then have it notarized & save the money in Attorney fees, It just didn't seem a safe to me. Glad I went to an attorney.
My husband and I have each held poa for each other in the event one of us were incapacitated....had them drawn up in '92. It was only after I heard his diagnosis and noticed his not taking care of our financial business that I had to step in and act on his poa. So, it would seem that when my children had my POA revoked, they did so illegally, even though John signed it and it was notarized. ???? I'll see an Elder Law attorney on Tuesday about this and my other issues.....hoping to put together a plan to "spring him from the joint" (the nursing home) on my next visit, with all the proper paperwork. Think that's possible?
Absolutely, StuntGirl. As you say, THEY revoked your long-standing power of attorney by inducing an INCOMPETENT person to sign something. A good lawyer absolutely ought to get that turned around. ALSO, I suggest that you think about suing them. From what you say, it seems that they did this for financial motivations, and in any way that they have profited from this, they ought to have to return that money. There are also issues like "intentional infliction of emotional distress" -- you can sue them for the anguish they have caused you -- punitive damages. This probably would never have to make it to court, because a good attorney ought to be able to use the threat of a lawsuit like this to scare them into settling. If they have been taking any of his money, they could and should be in big trouble. You need to hire a shark lawyer who will put the fear of God into them. What they did was not only wrong, it was illegal. Go get 'em !
All the above is true, be aware though you stand the chance of not turning the POA around if they prove he was incompetent at the time he did sign, they may still require a guardian be assigned by the Court and most likely that would be you, so you should win either way. Just make sure that when he signed the POA to you that it is a Durable one that carries all the way through Incompetency and that you can show by Medical records that he was competent when he signed for you and NOT competent when he signed for them. It may be a battle but I feel you would win.
I have DPOA for my husband and it went into effect immediately. An elder care attorney drew it up and there were to witnesses from the law firm. I have had to file the financial papers in multiple places (bank, retirement office, 401K, insurance, etc.). My DH has gone from what I call stage 4 last July to late stage 5 or with signs of stage 6 starting to show up. Is it recommended that we get guardianship as well? If so, at what time?
Diane, No if you have a valid Durable Power of Attorney no guardianship is required. What I was trying to explain that if a person signs a POA you must be able to show they were not incompetent when they signed the Durable Power of Attorney, if you file for Medicaid, they will check the Medical Records and make sure it was signed before they were incompetent.
The reason you have a Durable Power of Attorney is to keep from having to appoint a guardian in the first place. You are fine with what you have as long as it is durable meaning it goes from immediate all the way through the patient becoming incompetent.
I think you are right, Texas Joe. Or, if it could be determined or proven that a prior DPOA was signed by a person who was NOT competent when they signed it.
Hi everyone, I just wanted to add my two cents worth on the POA/Guardianship subject. I recently had a conversation with my attorney re: the nonsense with the title company. I brought up the subject of guardianship..just to be sure all my bases are covered. He said he wouldn't recommend it, whatsoever, in our case. When one is granted a "guardianship" in TEXAS, it has to be done through the Courts before a Judge. There has to be a formal accounting of expenses submitted periodically to the Court and he said that if the person in question has a wife or offspring with a Power of Attorney, that is all ,he believes is necessary. Casually speaking, he added he has seen Guardianship granted when the person in question has several children, all vying for access to his money, or when the person has no one previously designated with a POA..Usually they are younger and were suddenly injured in an accident, or by a unexpected illness. Again, with a court appointed Guardianship, there are strict financial accounting procedures required by the court. That, in itself, seems like a major headache. Caveat: This is TEXAS law. As everyone says, each state has different laws.
i think it would be rather complicated to be able to prove that were incompetent at signing in the earlier stages, . havent we seen here before that during the early stages they are still aware of what they are signing and still can legally drive?what would determine the cutoff time legally? when they give up driving or they dont know their name? plus if you have an atty draw it up and they to explain and notorized when they sign an atty wouldnt go ahead if there were any signs they didnt know what they were doing. alot of us probably didnt get a DPOA until we heard we needed one at dx. divvi
Divvi, when we had our wills updated, Durable Health POA, Living Will, etc. drawn up ten years ago, the lawyer also included a Durable Power of Attorney at the time. (That's the one Stewart Title said had 'expired') I appreciated his foresign - after Foster was beginning to have problems. At that time, we had the second one drawn up, primarily for our stockbroker - and because the originals were in our Safe Deposit Box out of state. It was a time is of the essense move. So, we have two. Thankfully the second one came in handy last week. I still prefer using the original one. It is in aheavy-weight.. grey backed cover, a seal PLUS a stamp! Incredibly impressive to ME. (grin).
We had everything drawn up in 1995 - before DX. My DH is still competent to understand various legal matters, so we had another set drawn up more recently. If necessary, I would use either/or. But that's just me.
I just hope I don't end up having to hire a FLORIDA attorney as well. $$$$$$$$$$$$$$$ . Thanks for everyone's advice and encouragement. Now, I'm gonna go sit on my front porch and enjoy the rest of the after noon after my hard day's work! Can I get ya a Bud Lite Lime, anyone?
I didn't think I needed guardianship but thought I might of missed something.
I have a DPOA for medical as well. It doesn't go into effect until I have a doctors letter confirming he is incompetent/unable to make his decisions. I have to wonder when to make that happen. I spoke with his doctor last week and he wants to hold off. The problem is that DH doesn't make any decisions now. Does anyone else have this type of DPOA for medical? At what stage did yours go into effect?
StuntGirl, I'll join you on the front porch, but I'm just before making myself a gin and tonic if you don't mind. (Had Bud and gingersnaps for a lunch snack a couple of hours ago -- some lunch, huh?)
i just checked DH. it became effective immediately upon signatures and 2 witnesses and notorized. mine on the other hand i have it to read when '2 drs agree i am incapacitated.' my son who is my DPOA medicall is a dr.. haha. i hope he wont 'rush' things.. haha.
i think you need to discuss if you need a dr to warrant 'incapacitated' = you know if your spouse is unable to make their own decisions. at that point i would activate it so if in an emergency you would have the authorization in place. if you dont it would take time to get that done and could place your LO in a predicament. divvi
We redid our wills and DPOA for medical and one for financial as soon as DH was diagnosed a few years ago. The atty just recently drew up papers to quit claim deed the home and property over to me. Because DH can no longer sign his name I signed at his atty-in-fact and I have to get the original POA out of the safe deposit box to take to the attorney so he can file it along with the quit claim deed with the court. He was very specific that it had to be the original, not a copy. He also said to Bring it, not Mail it, because if it got lost we would have some real problems.
Shouldn't have any problems even if lost since it should be recorded at the courthouse. You can always get a certfied copy from them. But, then maybe yours didn't get recorded. I would take the original and record it - then you always have access to a certified copy, which should be acceptable anywhere.
Nancy B, A guardianship is handled the same in most all other States as it is in Texas. The post was about HAVING to have a guardianship if the person was proved incompetent when they first signed a durable power of attorney. No one would want to get a guardianship unless they had to but sometimes you have no choice, if the person is incompetent and cannot sign a durable power of attorney and then you have to apply for Medicaid or certain other resources you could be required to get guardianship. I would never advise anyone to do that just for the sake of getting it unless very necessary.
Vickie Sometimes there are reason certain places have to have the original and make a copy for themselves, I took a friend to the Medicaid office yesterday to help her apply for her husband in long term care and she had a copy of her power of attorney, they told her they needed to see the original. Ask me why and I will tell you I do not know.
I believe they would be required to accept a certified copy of a filed document. Records are destroyed, burned, etc., but I think a certfied copy would suffice - of course, it would have had to be recorded in order to obtain a certified copy. Just like a birth certificate. You can order a new one - but, of course, it isn't the original - it's a certified copy.
not all states require you to file the DPOA in the courthouse. i didnt but our atty says it can be done here in tx . toomuch of a hassle but yes i guard the original with my life...its a very good idea to do 3 originals when you do the first one!!! good idea doneit. too bad we didnt. divvi and yes if you record it then it would most likely be a certified copy from the state and be accepted anywhere. divvi
Not divvi, but you get the original back from the courthouse after recording. Then if you lose your original, you can get a certified copy from the courthouse.
exactly nancy, you get it back but my same fear was what if it got lost while under their care? i wouldnt want ANY thing mailed but hand delivery and pickup=no way i could get another. i discussed with my atty and its always a possiblity unless there is a way to take it there personally and wait for them to record and bring home with you.. i don tthink so ..let me know if you wind up doing it! dont let it out of your site though. how awful would that be!!!!!!! divvi