Should I become my mother's power of attorney if I live closer to her than my brother? 30 Answers as of August 30, 2013

My mother has Alzheimers. My husband and I live close to her compared to the rest of the siblings. My brother who lives several thousand miles away is currently the power of attorney. Would it be better for me to become power of attorney as my mother's condition degrades?

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Edward L. Armstrong, P.C. | Edward L. Armstrong
It makes quite a bit of sense for you to be appointed attorney in fact under a power of attorney for your mother. You should not waste any time doing this as your mother cannot have a new power prepared if she is not mentally competent. You need to retain a lawyer to help you through this.
Answer Applies to: Missouri
Replied: 8/27/2013
Law Offices of William J. Hagan
Law Offices of William J. Hagan | William J. Hagan
It depends upon the current state of your mother's health, and specifically her mental capacity. For you to act as her attorney-in-fact, she must give you her power of attorney, and she must have the legal capacity to do so otherwise, any actions which you take on her behalf could be legally challenged and bring uncertainty to her affairs which no one would want to see. The alternative for persons who no longer have the requisite legal mental capacity, or who would prefer a conservator to be appointed to manage their affairs even though they have just enough legal capacity, is a conservatorship in the probate court. An application is made to the probate court for the appointment of a conservator. Again, if the person possesses legal capacity, he or she can file a voluntary conservatorship application and name the person whom they would prefer to serve as conservator. If, however, the personal longer no has legal capacity to sign a binding contract; to sign a valid power of attorney or to apply for a conservator in his or her own name, another person can file an application for what is considered an involuntary conservatorship. In that instance, the probate court would require evidence of your mother's current mental state s, and therefore whether or not she possesses legal capacity. If she is found not to possess legal capacity, and cannot conduct her own affairs, the appointment of a conservator would be appropriate. You might seek to be appointed as her conservator, and indicate to the court that you would be willing to serve if so appointed. On a side note, you should determine whether the power of attorney held by your brother is what is known as a quote durable" power of attorney, that is one which survives the subsequent loss of capacity by your mother. If that power of attorney is not durable, and your mother subsequently loses legal capacity, your brothers power of attorney is no longer valid. Most powers of attorney issued under the circumstances are written in such a way to be durable, and it will thus remain in effect. The existence of that power of attorney does not prevent you from seeking to be appointed as conservator for your mother, it is simply important to be aware of the extent to which her brother still has authority to act in that capacity.
Answer Applies to: Connecticut
Replied: 8/27/2013
Durham Jones & Pinegar | Erven Nelson
It depends on her competency to sign a POA.
Answer Applies to: Nevada
Replied: 8/27/2013
Law Offices of George H. Shers | George H. Shers
Yes, it would be better but your mother is no longer in the mental state that she can give anyone the power of attorney.
Answer Applies to: California
Replied: 8/27/2013
O'Keefe Legal Services, L.L.C.
O'Keefe Legal Services, L.L.C. | Sean P. O'Keefe
In Maryland, closeness in proximity can be helpful but is not necessary for an agent under a power of attorney (so the answer depends on defining "better" and the goal(s)). Who your mother chooses is her decision!
Answer Applies to: Maryland
Replied: 8/27/2013
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    If your mother has Alzheimer's and is not lucid, then she has no mental/legal power to issue a power of attorney.
    Answer Applies to: California
    Replied: 8/27/2013
    Law Firm of Marco Caviglia | Marco Caviglia
    It is advisable to obtain a durable power of attorney PRIOR TO the principal's mental degeneration. If you mother is already incompetent from her condition, it is too late, and you must seek a conservator ship through the court.
    Answer Applies to: New York
    Replied: 8/27/2013
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    Some powers of attorney are no longer valid once the grantor becomes incompetent due to a medical condition. An option would be to petition a court to grant you guardianship of your mother's person and possessions since you are the closest to her and to grant your brother conservatorship of your mother's financial matters.
    Answer Applies to: Nebraska
    Replied: 8/27/2013
    Rockhill Pinnick LLP | Jay Rigdon
    The best choice is whomever your mother selected. If you believe that person is not acting in her best interests, you can petition the court for a guardianship.
    Answer Applies to: Indiana
    Replied: 8/27/2013
    Law Offices of Frances Headley | Frances Headley
    Generally, it is better to have a person close named the agent in a health care power of attorney as health matters are often time sensitive and can not wait for someone to travel.
    Answer Applies to: California
    Replied: 8/27/2013
    Estrada Law P.C. | Michele Ungvarsky
    It would probably be a good idea to get both a comprehensive power of attorney for health care decisions as well as financial decisions before your mother becomes incompetent. I would suggest in an abundance of caution that you have your siblings listed as alternates on the powers so they can step in if you are unavailable for some reason. Also, make sure you keep in close contact with them when you make any decisions so there are no surprises.
    Answer Applies to: New Mexico
    Replied: 8/27/2013
    Law Ofices of Edwin K. Niles | Edwin K. Niles
    On the face of it, the answer would be yes. However, sometimes family dynamics enter in to such a decision.
    Answer Applies to: California
    Replied: 8/27/2013
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    It might be more convenient, but if your mother is incompetent, then she can't give you the power of attorney. Does the power that she gave your brother give him the authority to appoint a new attorney? If so, he can do it. Otherwise, it is the brother or you file for guardianship and conservator ship.
    Answer Applies to: Idaho
    Replied: 8/27/2013
    Law Office of Patricia A. Simmons
    Law Office of Patricia A. Simmons | Patrica A Simmons
    Unfortunately, due to your mother's mental capacity (Alzheimer's disease), she is not able to execute a new power of attorney. If her condition is rapidly deteriorating, she lacks the capacity to execute any type of legal document.
    Answer Applies to: California
    Replied: 8/27/2013
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    That's up to your mother. Not you or me.
    Answer Applies to: California
    Replied: 8/27/2013
    Thompson Ostler & Olsen dba Franchise Business Law Group | Brooke Ashton
    Generally it is better to have a power of attorney who is in the immediate area, but it is not required. It is really a convenience issue. One thing to consider is that your mother may not have the capacity to change her power of attorney at this point if she has Alzheimer's.
    Answer Applies to: Utah
    Replied: 8/27/2013
    Frederick & Frederick PLC | James P Frederick
    That is a decision that your mother would need to make. You may want to discuss your concerns with your siblings and your mother to come to an understanding as to how things should be handled. Assuming your mother still has capacity, she can change her POA form.
    Answer Applies to: Michigan
    Replied: 8/27/2013
    The Law Offices of Kristen Carron, LLC | Kristen Carron
    As a practical matter, it probably would be easier for you to be the power of attorney for your mother if you live closer to her. However, if your mother has Alzheimers she may not have the mental capacity to sign a new power of attorney to appoint you. As a result, your brother would have to remain power of attorney. If your mother is able to sign a new power of attorney, you will want to do it as soon as possible since as time passes her mental ability to understand what she is signing will diminish. You may also want to consider speaking with your brother about this. The last thing you want to do is have your mother sign a new power of attorney and then have your brother challenge it. You'd be dragging yourself into a legal battle that you don't want.
    Answer Applies to: Rhode Island
    Replied: 8/27/2013
    Law Office of Pamela Braynon | Pamela Y. Braynon
    It probably would be best if someone closer in proximity is there to make the decisions. But it also depends on who is capable of making the best decision in your mother's best interest.
    Answer Applies to: Florida
    Replied: 8/27/2013
    Danville Law Group | Scott Jordan
    If your mother has Alzheimer's, she may not have the legal capacity to revoke a prior power of attorney and appoint a new agent. Your brother may choose to resign and name you as the agent, if that is best for your mother's interests. If not, and you believe your brother is incapable of performing his duties, you can petition the local probate court to appoint a new agent, or more likely, a conservator for your mother.
    Answer Applies to: California
    Replied: 8/30/2013
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    Yes and no. In many ways, these days, financial matters can be easily handled at distance, by phone, by computer. You, living near, should have her health care power of attorney (in an Advance Directive). Your brother can delegate specific tasks to you under his POA. Make sure now, while Mom still has capacity, that banks and brokerages recognize the POA and will work with your brother. Final answer, too it's Mom's call. If she would rather you be POA (so you and she can discuss matters while she is still able) then make the change.
    Answer Applies to: Oregon
    Replied: 8/30/2013
    Charles M. Schiff, Attorney at Law
    Charles M. Schiff, Attorney at Law | Charles M. Schiff
    It would seem that it would be more convenient for you to have the Power of Attorney. I have no way to know whether your mother had other reasons for making her choice. If your mother is lucid and knows what she is doing, she can revoke your brothers POA and execute one to you. If she is now incompetent, you would need to consider a Conservatorship. That does not require her consent.
    Answer Applies to: Minnesota
    Replied: 8/30/2013
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    It really does not matter with the internet and ability to handle issues remotely. In any event, if your mother has dementia, she may not be legally competent to change it. You and your brother should address the logistics of day-to-day care and bill paying to see if you are in agreement on next steps. If not, and it is not a workable situation, you may need to pursue the added expense of guardianship. If that is the case, you should speak with legal counsel. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship. This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.
    Answer Applies to: Nevada
    Replied: 8/30/2013
    Law Offices of R. Christine Brown | R. Christine Brown
    If your mother still has capacity to execute (& understand) the power of attorney form, it may be better if someone nearby could handle paying her bills etc. If your mother wishes to change her DPA, you should advise your brother who is currently acting as the agent.
    Answer Applies to: California
    Replied: 8/30/2013
    James Law Group
    James Law Group | Christine James
    It is up to your mother if and only if she still has the capacity to change her agent. If she does not, your brother will remain her agent unless removed through a conservatorship for some kind of failure on his part.
    Answer Applies to: California
    Replied: 8/30/2013
    Kokish & Goldmanis, P.C.
    Kokish & Goldmanis, P.C. | Bernard H. Greenberg
    Your mother should pick the person she is comfortable with to act as her agent in her Power of Attorney. Close proximity can be a factor in what makes her feel comfortable.
    Answer Applies to: Colorado
    Replied: 8/30/2013
    Arthur H. Geffen, P.C.
    Arthur H. Geffen, P.C. | Arthur Geffen
    If your mother has Alzheimer's, it is doubtful that she possesses the capacity to execute a new power of attorney.
    Answer Applies to: Texas
    Replied: 8/30/2013
    Law Office of Thomas C. Phipps | Thomas C Phipps
    It is up to her to decide if she wants to make a new power of attorney. She would have to be mentally competent to execute a new power.
    Answer Applies to: Missouri
    Replied: 8/30/2013
    Gates' Law, PLLC | Thomas E. Gates
    It depends upon the types of financial matters your mother has. If there is no decision that requires on the spot response, then there is no need to have you as POA. However, if your brother is hard to reach or travels, then there may be a benefit to have you as POA. You both can be POA at the same time. You need closure on this issue before your mother condition worsened. She needs to understand and have full knowledge of the legal action being taken and must approve of it.
    Answer Applies to: Washington
    Replied: 8/30/2013
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