Surprise! January 2019.
By Timothy S. Barkley, Sr.
Susan’s voice was urgent: “I’m at my mom’s place at the assisted living. The social worker just told me that Mom signed a new power of attorney and replaced me. Our sister Mary, who hasn’t been around or spoken to Mom for years, is the agent. The social worker said Mary showed up last week, and she thinks Mary brought a lawyer here to have Mom sign the power of attorney. Can she do that? What do I do now?”
The attorney took a deep breath, collecting his thoughts. “Yes, she can do that, but whether it works or not depends on whether Mom was competent when she signed it. What’s Mom’s mental state?”
“Not very good. She’s confused most of the time, but she can hold it together for a little while sometimes.”
“The law presumes your mother to be competent, so you’d need to prove otherwise. And Mom only needs to be competent at the moment she signs the power of attorney. I’m sure the lawyer would say she was.”
“What can I do?”
“That depends,” the attorney reasoned. “Can you get a copy of the power of attorney?”
“No,” Susan answered, “the social worker says she can’t give it to me. And I don’t know how to get in touch with Mary to get a copy from her – even if she’d give me one.”
“Then your options are limited. If you can’t work things out with your sister, you’ll have to file for guardianship, and that can get messy – and expensive – really fast.
“Guardianship trumps a power of attorney, because a guardian has a court order, not just a document. But at least the guardian is accountable to the Court. Even if the Court named Mary as guardian, she’d have to account for your mother’s finances every year.”
Susan pondered. “Let me see if I can wait around until Susan comes in to check on Mom. Maybe we can work something out. I’ll call you.”
“Sounds good. Remember, anything that you can work out in your Mom’s best interest is usually better than dragging things through the courts.”
Susan called back the next day. “It’s worse than I thought. Mary is checking Mom out of assisted living and she says she’s going to take her home. She doesn’t even know anything about Mom’s care or her meds, and she thinks she can take care of her at home – Mom’s home, of course. Mary says she’s going to live with Mom and take care of her. I think she just wants to live rent-free. And she says I can’t come to the house – that she’ll call the police.
“This is driving me crazy. What happens if Mom doesn’t get her meds? How does Mary know how to take care of her?”
“If you think Mom won’t get good care you can call Adult Protective Services. They can send a social worker to investigate. And we can file for guardianship. We can ask the Court to grant emergency guardianship pending the whole hearing process.
“Check with your brothers. Make sure you’re together on this. Then let’s meet tomorrow afternoon to go over things.”
The following day, Susan and Ricky came to the office. Bob had called in, and wanted to be included by speakerphone. Susan opened the discussion: “It just gets worse and worse. Mary took the power of attorney and bought Mom a new car. She said that Mom’s old car wasn’t safe, and so naturally Mom needed a new high-end SUV. She’s also got contractors at the house, and we’re worried that she’s running through Mom’s money.”
The attorney took all this in. “I think we need to file immediately to try to stop the hemorrhage. Hopefully I can get in front of a judge in a day or two for an emergency hearing. The judge can appoint an attorney for Mom who can try to find out what’s really going on. Since that attorney works for the Court, he or she might be more believable. And the judge can issue an order to maintain the status quo until the court-appointed attorney can meet with Mom and review her chart, and make a recommendation to the Court.
“Here’s a list of what we’ll need for the guardianship petition. . . . “
To be continued.
Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
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