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My mother is suffering from dementia but hasnt given my brother

My mother is suffering from...
My mother is suffering from dementia but hasn't given my brother full POA (he's handling the financial aspects of her care and living-I'm doing the medical advocacy). My mother is okay now but at some point she will be deemed incompetent. Do we need to have the POA granted by her while she is still lucid? Are there implications having it done after she is deemed incompetent?
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Answered in 6 minutes by:
8/16/2013
Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 102,932
Experience: Fully licensed attorney in Texas in private practice.
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Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your mother's situation.

Do we need to have the POA granted by her while she is still lucid?

This would be very helpful, yes. A durable POA may be found at no charge here. This will help the POA agent to execute actions in her name if she is deemed incompetent.

Are there implications having it done after she is deemed incompetent?

Yes, there are. The Power of Attorney may not be binding if she was not lucid at time of signing. Wheeler v. St. Joseph Hospital, 63 Cal. App. 3d 345 - Cal: Court of Appeal, 4th Appellate Dist., 2nd Div. 1976 (general contract/cognizance discussion). As such, while the POA would be presumed valid, it may be attacked by your brother or another interested party as being invalid, arguing that she really had no understanding of what it was at time of signing, and as such, the POA should be ruled invalid.

To avoid this, you may be interested in filing for GUARDIANSHIP with the Court,also called "conservatorship." See here. This will have the Court ORDER someone to be her guardian (you, your brother, or whoever else you want to nominate and the Judge would have to agree), and it would void any POA signed by her, and give the Conservator the right to act on her behalf, override her actions if necessary, watch her finances, and get her the help she needs.

An attorney is recommended if you choose to pursue guardianship. May I recommend the CA Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

I hope this helps and clarifies. Good luck.

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Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 102,932
Experience: Fully licensed attorney in Texas in private practice.
Verified
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Ely
Ely
Ely, Counselor at Law
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Satisfied Customers: 102,932
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Experience: Fully licensed attorney in Texas in private practice.

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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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