What are the legal issues surrounding a Durable Power of Attorney (DPOA) vs. a conservatorship?

Dear FyreFly:

Can she revoke the Durable Power of Attorney? If so, you could be left with no power at all to act on her behalf. I do not know what the laws might be where you live, but you should be able to go to court to get a conservatorship (which she cannot revoke). To prevail in such an action, you'll need to prove her inability to adequately and safely handle her finances. Such things as an inability to manage her checkbook, pay her necessary bills in a timely manner, use good judgment in avoiding scams, fraudulent schemes and shysters, making inappropriate investments, etc. would show the court the reason for your concern. Of course, a doctor's affadavit regarding the onset of Alzheimer's--which to my knowledge is progressive and irreversible--will be important, too.

The court will oversee your actions by requiring you to file reports periodically (how often depends on where you live). This will protect your mother against the conservator "stealing" her money. Your mother will not be asked to agree to this--if the court finds the conservatorship necessary to safeguard whatever assets she has, then it will be granted. (It will weigh her right to independence against the liklihood that without the conservatorship, she'll exhaust her funds foolishly and then become dependent on state support.)

In the meantime, start sending/faxing that Power of Attorney to all the service providers and ask that her bills be sent directly to you. That might assure that they get paid in the short term until you can get the conservatorship. After that, you'll be free to set things up in whatever responsible manner you choose.

Good luck! I'm in a similar situation myself, so I feel for you.

She could revoke it easily if she knew how. She doesn't remember how to do it, and no one has told her ... yet. That's what I'm worried about, and why I wanted to know if there was any way I could make the DPOA permanent without the hassle of seeking a conservatorship. I understand that usually a person is declared incompetent by two separate doctors before the DPOA cannot be revoked. Since I cannot get her to see a doctor, the question may be moot.

I have been holding off trying to step in and take care of the bills so that she has a clear track record of messing it up, and because I didn't want to take more authority than is absolutely necessary in dealing with the situation. I'm currently waiting for my attorney to give me a status report - and I feel like I am doing a whole lot of nuthin!

set up bills to be paid from her, or a checking acc. this method is good for anyone. saves postage, time, and prevents late charges. firstgirl

FF:

Amy Shelf, an attorney specializing in estate planning and probate for individuals and families of all means, once wrote:

"A power of attorney for financial matters and a conservatorship can both authorize a person to have control over another person’s financial affairs.

There are a few key differences. For one, a power of attorney is limited to financial assets, whereas a conservatorship, also called an adult guardianship, can have two components: a conservatorship of the estate (providing management of money and other property) and a conservatorship of the person (health care and living decisions).

Frequently, a conservatorship of the person and a conservatorship of the estate are in place at the same time, but not always. Therefore, there are some areas of decision-making that are not covered simply by a financial power of attorney, and where a conservatorship of the person may be necessary. If your [mom's] dementia renders [her] unable to make decisions about [her] care and living arrangements, you may need a conservatorship.

Another important difference between a financial power of attorney and a conservatorship is that a conservatorship requires court appointment and oversight, whereas a financial power of attorney does not. To secure a power of attorney, however, your dad would have to have sufficient legal capacity to make the document — that is, recognize what it is and what it means.

There are other facts for you to weigh, too. The court proceedings involved with setting up and maintaining a conservatorship can be very time-consuming and cumbersome; once established, a conservator’s actions will be reviewed by the court to make sure they are in the protected person’s best interests. By contrast, it is generally quicker and easier to act under a financial power of attorney. However, it is difficult to monitor the activities of an agent under the financial power of attorney.

In addition, banks and other financial institutions are sometimes reluctant to act only under a financial power of attorney, and prefer the certainty and protections offered by a conservatorship.

One other important difference between a conservatorship and a financial power of attorney is that a conservator has exclusive control over the conservatee’s affairs. With a power of attorney, on the other hand, the principal (in this case, your [mom]) is not necessarily stripped of his rights to make his own financial decisions. This can be particularly important when dealing with dementia, which can make people very distrustful and combative.

If your [mom] is still in the early stages of dementia, [she] may at times have capacity and at other times may not. A power of attorney may not be enough to make sure that your [mother] does not do harm to [herself] or his finances.

Nonetheless, it may be preferable for you to accomplish what you can with a power of attorney before resorting to a conservatorship. In fact, if your [mom] is not yet incapable of taking care of [herself], a conservatorship might not be an option until [her] condition deteriorates further."

Firefly, the words in brackets are the only things I had to change in Ms. Shelf's statement. Hope it helps.

My love and support always,

-- ED

Firefly:

Where it says "dad" or "father" in Ms. Shelf's statement, change it to "mom" or "mother."

-- ED

Got it! Thanks, Ed.
~FyreFly

She can revoke those POA duties at anytime. But if you take her to the doctor so you can get in writing that she cannot handle her financial matters herself. And it doesn't need to be an official letter or anything, I just used the notes in the doctor's diagnosis that my Dad was not competent anymore to deal with financial stuff.

With the POA you can contact the vendors and have the address of the bills changed to your address, or copies of them too, if you still want to her to pay them. If you are on her account too, which you should be (in case something happens then someone can access the account, convince her this would be in case of emergencies only) then you could contact them to see if the bills are paid a few days in advance, if not you can pay via the account's debit or credit card. That way nothing will get shut off.

i was my mom's durable power of attorney/sworn in legal rep/only perosn on her will/ and had legal health epoxy and a DNR. that wass all done many years before she was even sick, and done buy a legal attorney. When she came done with Alzheimer's/dementia, I was able to get a note from the doctor and change the bank accounts, and some bills paid auto pay. I also found insurance policies and set up a special account for a funeral expenses. some states if a person goes into a nursing home they put lein's on everything. the only thing that mom did not do in time was about her home. She had fallen and the doctor placed her in a nursing home up north and they placed a lien on the home until I sold it. her hospital bill up north and nursing home bills was over $200,000.00. I brought my mom down to Florida and tired to take care but it was too much, but I found a home enviroment assisting living of which she was for almost two years. I was there almost every day. You can get help to get your parent to a doctor from your states elder care listed in the telephone book.

My husband and I were appointed durable Power of attorney over his mother. She recently moved into her daughters home and they coerced her into sighning revolktion papers. They are financially unstable and want her there for her ss check. Can we take this to court and have the durable power reinstated?

my mom has dementia shehas me her only son as durable power of attorneyshe did this way before she was diagnosedwith full blown dementia her sister is also mentioned on the power of attorney papers only if i refuse it can she or my mother have it revoked we both reside in los angeles county ca my aunt is watsonville northern ca

I am my fathers DPOA I'm trying to get copies of his old account due to some missing money in the sum of approx $80,000 the bank states that I was not on the account at the time and do not want to give me the copies

i need to get health care power of attorney on my mother i already have power of attorney over her finances. what do i need to do to get health care dpoa because she can no long care for her self and need care 24 hours a day.

Have durable P.OA. And have been taking care of mother. I have been living with her and been responsible for her and house. Siblings are now trying to terminate my P.O.A. for their joint guardianship. There is little money and house is on market for $220,000. They don't help with her care or house. Is there anything I can do? Bart

I do not have POA for my mother. She is 92 and has dementia. She is rapidly declining. The attorney wanted me to go through the courts and obtain Conservatorship or Gaurdinship. I know how this works due to working in a financial institution. Everything has to go through the courts. I,personally, will not complete. I know how difficult it can be. I take care of all my mothers financial and medical care. I have 2 sister. I have already told them, if they want control, Mom must move in with them. For my one sister that would mean moving her out of state and starting all over for her senior day care, Medicare, CNA, Medical, new doctors, and taking time out of work when necessary. She is not willing to do all the work. My other sister lives about 10 min away. Her only answer is to put her in a nursing home. I advised her we can do that if she is willing to pay for it otherwise, I have control and no questions. I know as long as we have POA and file, and for our company a Certifcate of Attroney in Fact has to be updated every 6 mths, financial transaction, address changes, fund transfers can be completed as long as it is received in writing. It is true that it can be revoked if you have family members that are more concerned about their pockets than your Mom. Each case is diffrent. I know for me I had as it down and recorded it, so that there were no problems later. Unfortunatly, at times like this, the elderly are thought of as money and not people. I am extremely, maybe over cautious when dealing with family member and do report anything and everything when I feel the elderly are being taken advantage of, or that some type of fraud is involved.

I have Financial, Medical and Mental Power of Attorney for a friend of mine who has been seriously ill for over a year. She has also not worked in over a year and is currently in hospice. I want to contact all of her creditors and let the know her status so they can close her accounts. But, I am unsure if I should do so. While she does have some money, she does not have enough to pay all of her previous credit cards and utilities. I just want to pay her current medical bills as she needs those. Am I obligated to attempt to pay her non-medical creditors also? Should I send her non-medical creditors a notice regarding her current medical and unemployment status?

my husband is 80 poor health, i am 68 good health, retired r.n. we have 2 homes detroit and inskster. he left and went to detroit where his grown children live because i took away some of his vitamims, he is non-compliant to the doctors and me. he can barely walk due to disease of his legs and is now living alone. he also has uncontrol blood pressure, heart condition. his family is using him i cannot get him to come back home i am afraid of his daughter who threatens me a lot. I recieve a letter in the mail where he has taken out a $32,000.00 loan from the credit union for what i do not know. it is sign a single man but he is married to me. his family is taking advantage of him, he still tries to drive. an accident can cause serious financially trouble for both of us. he goes to sleep at the wheel, he goes to sleep with food in his mouth yet he is living alone until one of them need something he will do it. when he is with me they know not to ask anything. last time i went to check-up on him they changed the locks on the door. i am afraid he will die in that house all alone. what can i do he needs me

Ernie that's a sad story, my heart goes out to you! You still care about him despite everything being so unreasonable...but seriously, it would make sense to get an eldercare attorney and make sure it is not possible for you to be considered liable for the loan at all, as it could depend on laws in both states. Ladyvette, you may need a lawyer too...in the medical world once someone has POA and permission to get medical records, it is normally for all records past and current, and my guess is someone is either hiding something or misinterpreting the law - if you are now entitled to manage the account, I can't understand why you cannot get any information as far back as available on it.

Can I be your power of attorney over my dad can my brother the conservative over my dad

Can a family member revoke another family member being POA and take over as DPA. The person who gave POA has now become incompetent.

Firefly and 3boys: Yes she can revoke it and you need to obtain full guardianship which allows you to protect the person and the property. This is done be petitioning the court for a guardianship. See a lawyer ASAP, it takes several months to complete the process.

One of my brothers convinced my mother to assign him Durable Power of Attorney in her Will ten years ago, prior to her developing dementia and the early stages of Alzheimer. During this time period he has only superficially been involved in the actual care of my mother, but has allowed another brother to move in and supposedly assist with the care while paying a specific amount of rent set by my mother. This brother has failed in paying his rent and purposely lowered or not paid the amount he was supposed to be paying. As my mother developed dementia he could not care for her, and my mother had removed him from her accounts because she did not any longer trust him. I was called in to help and my mother was languishing under his care. I began the process of care unaware of my other brothers durable power of attorney and that a Will had even been written. I helped my mother with her health care, financial dealings and was assigned as a signatory for my mothers accounts and as her representative in all health care decisions and her representative payee with her pension. It was only after this was obtained that it come to my attention my brother was her DPOA because he had been involved. While investigating her finances to find out how she had been spending her money and to understand how I could best help her I discovered my brother who was the DPOA had taken out loans from my mother and had allowed another brother to take out loans. It is unclear whether all the money was ever repaid and the brother who was supposed to be paying rent all but moved in on mom, beyond the basement apartment he was renting and was observed demanding money from her and there was little evidence he had been paying her rent at all. Whereas he was observed giving her rent money less than the amount he was supposed to, then demand money back for gas. This was brought to the attention of the DPOA who has refused to act on it. I filed for guardianship and conservatorship and have been awarded this temporarily until the full hearing but this has been delayed and extended numerous times because my brothers have been fighting me because they want control of her finances. My questions are quite simply this: Does a court ordered conservatorship and guardianship trump my brothers durable power of attorney? And, now that my mother has dementia, but not totally considered incapacitated still have the power to revoke his durable power of attorney?

Well, your brothers certainly failed in their duties as POA and need to be removed. The POA itself may specify this. Good thing you have lawyered up. They probably don't want all they did to come to light, but it will have to, and yes the guardianship would trump the POA, and no, Mom would not or at least should not have the power to change the POA herself at this point. Will be praying for you, this sounds tough, but you sound tougher :-) and if you can let us know how it all works out that would be awesome.

The court order trumps all preceding actions. Once the Judge appoints a guardian or conservator, only the judge can remove them. Once the judge says the ward is incompetent, any POA is void. You get to carry the cross and you have to send annual financial reports, detailed to the penny, to the Surrogate court. You go to all medical appointments and keep detailed records of that too. Bon Chance!

My Mom eloped at 79 and had already had a stroke. She gave me POA a few years ago. That POA states that I have POA over her Health and Financial affairs. She has dementia and has been scammed many times. I have been handling her financial affairs now for about a year. I take her to all of her Doctor appointments. She has arthritis and can barely walk. The Doctors have told her to stay off her leg because fluid is pooling in her right leg and she is at risk at loosing it. Her dementia is so bad that she is not allowed to turn the stove on. She will not listen. She is 87. Her husband is 90. She says he is taking good care of her. He is not. He lets her do what she wants. Their trailer home is a fire hazard and is full of mold. I need to do what the Doctor says and get her out of there, either to my home or to a nursing facility. I get no cooperating from her husband's family. I live in the State of MS. She is in the County of Itawamba. I live in the County of Monroe. I am an hour away. I take her to all of her Doctor appointments. Her husband has never met her doctors. I can not protect her from this distance. What am I legally able to do?

@BBTroubled - Two options come to mind: Eldercare lawyer to help you get a guardianship if her cognitive impairment is severe enough (bear in mind she will be able to contest this), or Adult Protective Services if the living conditions are bad enough to be an imminent threat.

How do you step in without a fight I am power of my mother's finances and health. My brother is always taking from her. How do I get it to stop?

Im a ex husband.My ex wife has a fiancee and we are trying to get a Durable POA revoked from a sister that is misusing funds and elderly abuse like taking her phone wanting money to give it back.Her boyfriend tried to extort 2000.00 from both of us.My ex has told them too many times to count that she wants a revocation of the POA.It was done while ex was in a rehab under meds and confused.They told her it was a release form.I know my exs signature considering we married in 1973 and her last name is not spelled with a R.These are street drug addicts one is on a med to help her stop the boyfriend is a drunk drug addict never worked a job he is in his late 40s.They called my house with threatning calls 1am to 3 am.No one but her boyfriend and myself cares.Ive called everyone they tell me the same thing tell her to revike well sounds easy but she is locked up in house.

I'll pray for all on this site.Ive done alot of that lately.Our lawmakers needs to address this problem considering the baby boomers are elderly.

I have a sister who has a brain injury and seems lucid but is unable to pay bills, or care for herself. I currently am signed on her checking account so I can pay her bills. But because she doesn't live with me, if I need to contact Social Security, etc... I need to drive to where she lives and make the call with her so they will talk to me on her behalf. I'm sure which is better, a DPOA or conservatorship. I may have to have her placed in a board and care.

Shelly, just make a conference call. If your phone isn't enabled, contact your service provider and see if there's another way you can use your phone for a conference call. I do that with the VA, Medicare, family and friends. Saves a lot of time and driving.