My question is....if a person is to be deemed legally incapable of making their own decisions, this is something that has to be done in a court of law? I know I seemed to answer my own question using the word "legally"........but....my 91 yo mother has refused for years to see a doctor and has been living in deplorable conditions. APS says no one has had her declared incompetent so she can live as she chooses. I have stayed with her, getting her groceries and performing various logistical needs for her. It has been very stressful with the daily angry hysteria, slaps and spitting in my face, etc In May she fell and has fractured her hip and broke her wrist. She has spent about six weeks in a rehab facility. I took the opportunity to get her to a geriatric specialist. He determined she has dementia, and filled out a paper saying she is not capable of making medical decisions. He also found she has thyroid, anemia, UTI, and other issues and has prescribed meds. She is due to be discharged from the rehab place shortly. They say she needs a walker, and has made other recommendations. She vehemently refuses any help at all. There is a board and care I want to place her in, but understand how it stands now, if she flat out refuses to go there, and refuses to take her meds, there is no legal way to enforce it. Back to my question then....the document signed by the doctor is not enough to put the "power" into my POA? I still need to go through a court of law if she is to be declared to legally not have capacity? Besides providing her with her care, I want to make sure I do not do anything I have no legal basis to do; and that I do not do anything that seems legally neglectful because of what the doctor wrote. Side note, I really think when someone is younger and prepare a POA document, they need to describe what their clear minded wishes are, and provide that their POA may have to take an adversarial stance about things they say when they are getting dementia.
She may settle in after awhile or she may be so much trouble they kick her out. If she's hitting and spitting she needs some calming meds.
Legally, she gonna sue you? Some relatives might sue you? This borderline competency situation with elders Is common. And from your description of her behavior it's pretty clear this has crossed the border. Do what you have to do to care for her.
You can then work with the Social Worker to find an Assisted Living facility, Nursing Home or you can make the decision to bring her to live with you or if there are other family members that will help in this situation.
If the ReHab facility is aware that she can not manage on her own they will not want to discharge her because they do not want a readmission.
Declaring her incompetent will require a court. Someone will have to be appointed Guardian. This can get complicated, expensive and a down right pain in the @ss! (voice of experience here)
I strongly suggest you get a lawyer that specializes in Elder Law. Expensive? Yes..Worth it? Yes.
As long as there are assets, house, money, property you will need or have guardianship of the person and of the estate. Once there are no assets it will revert to a guardianship of the person only. That is a bit easier and does not require a court review of expenses every 6 months. All I can say is save EVERY receipt that you have that has anything to do with her care and any expense you put out.
Has she been seen by a geriatric psychiatrist? Sometimes, antidepressants and anti anxiety meds can make a world of difference.
Medical Power of Attorney
A medical power of attorney is one type of health care directive -- that is, a document that set out your wishes for health care if you are ever too ill or injured to speak for yourself.
When you make a medical power of attorney -- more commonly called a "durable power of attorney for health care" -- you name a trusted person to oversee your medical care and make health care decisions for you if you are unable to do so. Depending on where you live, the person you appoint may be called your "agent," "attorney-in-fact," "health care proxy," "health care surrogate," or something similar.
Your health care agent will work with doctors and other health care providers to make sure you get the kind of medical care you wish to receive. When arranging your care, your agent is legally bound to follow your treatment preferences to the extent that he or she knows about them.
Execution
In order for a power of attorney to be a legal document it must be signed and dated at a minimum by the principal.[4] This alone, however, is not usually considered sufficient if the legality of the document is ever challenged by a third party.[citation needed] Having the document reviewed and signed (and often stamped) by a notary public increases the likelihood of withstanding such a challenge.[citation needed] However, such notarization is not always necessary for such a document to be considered legal.
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