Mom with dementia made the mistake of naming my devious brother POA AND executor! She wants it changed now, is that possible?
Mom lives with me now, and my brother "decided" on the amount of money he sends me for her support. (about one fifth of her monthly SS and other income!) I suppose he can do that legally because he's the POA. But now mom wants things changed because of his deviousness. I've already been to an attorney several weeks ago, and he's done nothing! Should I find a different lawyer? My brother and I don't get along at all - as the executor of her estate is he able to change her will? He's angry with me and keeps saying things like "payback". Is there anything I can do? It feels like he's got everything sewed up! I think he's pocketing all the rest of her monthly income, but there's no "watchdog"! How could this scenario be possible? It's a travesty.
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Good luck to you. Been through the greedy relative thing... it ain't pretty.
You said she has dementia?
Has she been declared incompetent to make decisions, by a Doctor?
Even then, there are ways to get it changed.
==Particularly if the current POA is misusing her SSI check income.
==Particularly since you are providing more than half her care?
[housing, meals, transportation, clothing, supplies, etc.?? costs that are half or more of what brother sends? ]
==You are keeping a record of her behaviors, lucidity, daily events?
==You are keeping records of money you spend on her health, welfare, upkeep?
GOOD!
Now, your brother needs to cough up records of what he is doing with the rest of her income?
It's not his to keep. It's Mom's.
He can manage it, but not use it--withholding it, or using it for himself, is wrong...if Mom has needs not being met because he is keeping hold of her money, he is not acting in her best interests; if OTH, he has been putting it into an account to gain interest, so it lasts longer for her long-term care, that might be different..
Social Security really dislikes when someone takes money from those receiving SSI or SSDI. That might be considered defrauding the government, and/or theft from a fragile elder--elder financial abuse?
You need help.
Talk with Social Security Admin, in person--at that office closest to you.
Bring what records you have for finances.
Bring Mom, if you can, so she is there to tell them you are OK to interact with them on her behalf--that can be written into her SSA records, for future reference--and it can be done without a POA.
BTW--IF she is able to get a new POA written up by any lawyer, she can
...and it will automatically supersede the older one naming brother-
---but he might try to contest that, on grounds of Mom's dementia-
--so IF Mom has NOT been legally declared incompetent yet, NOW is your window of opportunity.
He could still try to contest that, because of the diagnosis, & possibly could win--but you still have a trump card:
IF he pushed that, you could simply tell the judge to put the POA into the State's hands...have a 3rd party POA manage Mom's finances.
Those are legally bound to do it right, and, I believe, are Bonded, so if they screw up, there is some recompense. With your Brother taking the lion's share, there's no recompense--he's probly already spent it.
Start with SSA office, then go from there...you will likely need a lawyer, one way or another. You will need records of her finances--proofs from the SSA what Mom's checks have been, vs. how much brother has sent you for Mom's upkeep.
Also, bring bills you have paid, receipts, etc., showing how much Mom living with you costs.
Also, bring some comparable costs of keeping Mom in a facility.
That usually shows how much you COULD be charging her estate to pay for her being under your roof!!
Please keep us posted!
I assume the new POA would contain language revoking all previous POAs (and specifically referring to the one dated x/x/xx and naming So-and-So as the acting agent). I would send a copy of the new POA via registered, certified mail to your brother and to the lawyer who created/notarized the original POA. It is important also to update any banks or other institutions that have the old POA on file.
Yes, if you've contacted an attorney who has done nothing, I would find a different attorney. Time if of the essence here, not just because of what your brother is doing "with authority" but because of your mother's shrinking window of competency.
If your mother is capable of doing so, I would suggest asking her to write a statement explaining why she wants to revoke the existing POA, and I would get that statement notarized along with the new POA. She may be able to do this now but not later, is the thing, and if legal action comes up down the road, it might help to show that she was "of sound mind" and had good reasons for revoking the POA when she did it.
I have been so blessed that my mom WANTS me to take care of EVERYTHING,!
Which puts me on an almost daily schedule of catering to her needs. No siblings, only my spouse to help. If I miss one day she says " I haven't seen you in two weeks". (I call it her "pity me mode")
Good Luck.
1337.14 Revocation.
(A) A principal who creates a valid durable power of attorney for health care may revoke that instrument or the designation of the attorney in fact under it.
The principal may so revoke at any time and in any manner. The revocation shall be effective when the principal expresses an intention to so revoke, except that, if the principal made the principal's attending physician aware of the durable power of attorney for health care, the revocation shall be effective upon its communication to the attending physician by the principal , a witness to the revocation, or other health care personnel to whom the revocation is communicated by such a witness. Absent actual knowledge to the contrary, the attending physician of the principal and other health care personnel who are informed of the revocation of a durable power of attorney for health care by an alleged witness may rely on the information and act in accordance with the revocation.
(B) Upon the communication as described in division (A) of this section to the attending physician of a principal of the fact that the principal's durable power of attorney for health care has been revoked, the attending physician or other health care personnel acting under the direction of the attending physician shall make the fact a part of the principal's medical record.
(C) Unless the instrument provides otherwise, a valid durable power of attorney for health care revokes a prior, valid durable power of attorney for health care.
(D) Regardless of when the declaration is drafted, the execution of a declaration for mental health treatment does not revoke a valid durable power of attorney for health care. A declaration for mental health treatment executed in accordance with Chapter 2135. of the Revised Code supersedes a valid durable power of attorney for health care with regard to mental health treatment and the designation of a proxy to make decisions regarding mental health treatment.
Effective Date: 10-29-2003
Payback time it is.
Tell us what happens.