My sister had POA and guardianship over my mother - My sister has since passed away, and now no one has a legal POA or Guardianship over my mother.
I went to an attorney and was told it would cost $5-7K to become the guardian.
My mother suffers from Dementia and is most days unaware of who I am.
She is in the local VA medical center, and has been for years. My father passed away 2 years ago.
I am at a loss as to what my legal status is. Any guidance would be appreciated.
Thanks
To have control over Mom’s finances and make decisions for her care, etc., you will most likely need guardianship. You can ask the attorney if there’s any other way, but I don’t think there is.
Any costs come out of your Mothers estate you incur no costs.
contact the court where the process is heard, the Guardian must file annual paperwork showing the status of the Ward. So where ever that is needs to be informed that the Guardian has passed away.
law.cuny.edu/academics/clinics/elder/Becoming-A-Guardian-Without-A-Lawyer.pdf
Good Luck
Good luck with your situation, hope you find a suitable solution.
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My understanding is that this is not cheap and it will take time before and after (you have to keep meticulous records of how you are spending her money and report that to the court on a regular basis.)
IF mom has enough assets, the court costs would be covered by those, not yours. If no one in the family steps in to do this, the court will appoint a third party. If mom does have assets, I would recommend against letting that happen (if it did, I believe you can petition the court to reassign these duties to you or another family member.)
If mom has no assets and/or is on Medicaid, perhaps you would only need to get guardianship, just to protect her - no need to make extra work with the finances. I think Medicaid pays directly to nursing homes (and some ALs) and in many cases SS can be assigned to them directly as well.
Anyone else out there who knows for sure, chime in! It will likely vary from state to state, but the basis should be the same. We had all the proper documents (including a backup/co-DPOA) set up in time and she has enough assets that we are self paying, so no court or Medicaid to deal with!
Be sure to find a competent attorney who knows all the ins and outs. Most likely this will be an Elder Care attorney (was the original who drew up the POA EC atty? If so, unless you have good reason not to, I would recommend using that attorney.)
I hope this helps a bit. Sometimes it helps to take this one step at a time even when financially it may seem to best lump everything into one legal basket, so to speak.
1) If mom is not deemed competent, she cannot assign anyone as POA
2) If anyone has/had POA, guardianship overrides that.
Not sure why your sister would have POA AND guardianship. If she had to go with guardianship to avoid someone else overriding her POA, then the POA is null and void.
A VA advocate would be helpful. They can probably guide you and present what options you might have, but in the end, unless you feel extremely competent about tacking the court system yourself to apply for guardianship, your best bet would be to hire a competent EC attorney. Depending on how well mom can present herself, the courts can hire an attorney for HER, who might fight your request (see Vonclary's post!)
If mom has any assets, those should be used to pay all the legal fees incurred (if she does not have enough, you may have to help...)
A person with dementia can still be deemed competent to appoint a DPOA, by a court. It depends on her level of dementia.
If she is still somewhat capable of cogent thinking, and will not object to you having DPOA, I think you need to become her Durable power of attorney or DPOA, asap, before she slides further into dementia.
What you should ask is what is their process when a resident is permanently incapacitated and has no durable POA for general affairs and finances?
The details vary from state to state, but in many cases, if the court considers guardianship, they are often inclined to choose family if any are available and seem reliable.
You could ask the VA social worker if there is any way that the VA might be able to help initiate such guardianship proceedings, perhaps that would make the process more affordable for you?
Otherwise, in most states, the law usually allows next-of-kin to make essential medical decisions, even if no DPOA has been signed. The VA social worker should be able to tell you how this would work at your mom's facility and VA medical center. Good luck!
Find a paralegal (they work with attorneys but also have their own businesses on the side so to speak) who is EXTREMELY well informed regarding this issue.
The paralegal will help with the doc prep for motion to the Courtin most cases, file will even file the Motion for you.
From the start, the paralegal will help you through all the upcoming Court issues you will face.
PARALEGALS LIKE RNs KNOW MORE ABOUT HELPING YOU BECAUSE THAT'S THEIR JOB WORKING WITH THE ATTORNEY!
I did this BEFORE I had to hire an Attorney AFTER I became Mom's Guardian/conservator this past July.
The paralegal I had was ABSOLUTELY THE BEST. I live out of State and she did ALL of the filing etc for me....a flat rate of $750! The ONLY thing she could not do was being present in the Court room.
I represented myself (make sure all your ducks are in a row. Paralegal will help you) and I killed it!!!
ONLY reason I had to hire attorney....I'm taking step-siblings to Court for monetary issues. I will still need my Attorney after all is said and done....we all have them....those greedy family members who didn't care when the person was alive, but they want WHAT they THINK is theirs.
JUST BECAUSE ONE IS AN IMMEDIATE FAMILY MEMBER OR A FEW TWIGS AWAY ON THE FAMILY TREE, DOES NOT MAKE THEM A PERSON ENTITLED TO AN INHERITANCE!!
****make sure you research the paralegal you're thinking of hiring. I did, she's wonderful AND we still communicate with each other. I love her like a daughter/friend****
Guardianship requires a court hearing to show they cannot make their own decisions. If this is too much financially, there should be a Legal Aid in your area that you might qualify for. (FYI I am not a lawyer)
Check where you live because you maybe able to piggy back this way - if you need to guardianship then MOM'S estate pays for it not YOU as is just & fair
For anyone who is preparing POAs I encourage you to consider this formula. Life is uncertain and an accident or unexpected illness can remove an option at any time. POAs need to stand the test of time - often a decade or two.
I've been reviewing many of the responses and I'm not an attorney either, but I am still running toward the finish line so I can get some normalacy in my life.
1. Google State Laws. Big difference between Community Property vs Common Property Law.
2. Probate State? That opens another can of worms.
AZ is Community Property. One needs to have more than just a POA to take care of a parent(s)
a) Guardianship
b) Conservatorship
c) Representative
A POA is totally different than the above list. Need to know the differences between them and how they are used.
IF you live in a Probate State and Mom does not have a Will, the Court will decide how the Estate is settled.
IF the Court appoints a Guardian/conservator to a "professional", yes there are "professionals", Mom's estate will be paying out the wazoo to the point that you and other family members can be held responsible for any debt; any money paid for care by the State will become a debt to be paid back!!
I did Mom's Guardian/conservator via the help of a paralegal who should really be an attorney she's that great!
AFTER I was appointed, everything filed, Mom is now a minor and I'm the parent. Unless my siblings want to pay to take me to Court, they have to go with my decisions. When the time comes, I'll petition to become the Representative who controls the Will/Estate.
I ONLY had to hire an attorney AFTER my appointment BECAUSE I am taking my step-sister to Court for fraud. Otherwise, I could do everything on my own. I'm moving Mom's money over to a better Investment firm and they do the yearly budget required to file with the Court. I do all of the other bookkeeping reports.
DON'T let your Mom leave intestate!!
FYI, so far my attorney billing...$687 because I did what would have cost thousands of $$$ by having a paralegal help me get over the 1st hurdle. The billing for the required Court appointed Fiduciary...$1650 and he only had to make sure Mom and my step-father are mentally incapable of taking care of themselves or understand what is happening, show up to Court to give his $.02 in and leave!! I won't be able to get rid of him unless my Attorney can get the Court to dismiss OR once I get the appraisal/inventory done and agreement between me and step-siblings.
I'll keep the attorney because it's going to hit the fan in the end.
We did not need financial guardianship because the estate was less than $2000.
The total cost from the attorney was $1750. It was by the hour, which included a one hour meeting with us adult children.
Another few hundred for a background study by the police.
The social worker at the nursing home said many families do the guardianship through probate on their own. The probate court will walk them through it, she told us.
Best of Luck to you.
Suggestions made by others were to see if you can find less expensive legal assistance (SW, VA advocate, Council on Aging, etc). If mom has any assets, those can be used to pay for the court and legal costs, once approved. If not, perhaps one of the resources suggested or even the attorney who quoted the cost might suggest a legal aid group who could help for little or no cost.
I believe it was jacobsonbob who mentioned that the VA does not honor the POA - this applies to ANY federal entity (IRS, SS, pensions.) They all have their own process for assigning someone as representative. One other note - if mom's income was already assigned to the VA (direct payment), perhaps you could file the paperwork they require to be her advocate - if she has no assets or other income, and it already goes to them, you might not need to go the full guardianship route via the courts, but rather via the VA. Talk to administration there - they might be able to assist you in filing the forms needed.