By Tim Barkley. February 2021.
“My dad is in assisted living. We need to pay his bills, but his power of attorney says it only works if he’s incompetent. I can’t get anybody to say he’s incompetent. They say the doctor will check up on him and make an evaluation, but they’ve been saying that for weeks. What can I do?”
Hopefully, the doctor will show up soon. Have you tried to get his usual doctor to go and see him?
“He went to one of those doc-in-the-box places after his old doctor retired about 10 years ago and moved to North Carolina. Nobody really knows him. And anyway, during COVID, nobody is getting in.”
That’s a tough situation. The only real alternative is to file for guardianship and get a court to order a mental evaluation. That’s expensive and takes months.
Three weeks go by.
“The doctor evaluated him, but he said Daddy is competent. The aide said Daddy ‘pulled himself together’ for the evaluation, something about a ‘lucid moment.’”
That happens sometimes. When it’s important, people can get it together for just long enough to look competent. Because the doctor is only spending a few minutes with him, there’s no understanding of the long-term situation.
“Don’t tell anybody, but we’ve started just signing his name to checks. My sister is trying to get online access to his bank account. Nobody is stealing his money, but we can’t just let his bills go unpaid …”
I strongly advise against that. It’s probably a crime.
“We don’t want to do anything criminal, but what else can we do?”
Well, you could file for guardianship, but that’s expensive and takes months.
Three weeks go by.
“The assisted living is letting me take Daddy to see his dentist. I want to get him evaluated while we’re out. What sort of doctor should we see? Just a general practitioner?”
That’s good, or a psychiatrist or neuropsychologist. A neuropsych eval is really thorough, but it takes time to get an appointment, and it’s pretty expensive.
“Let me see what we can do.”
Two weeks go by.
“Daddy wouldn’t talk to the doctor. He said we were just trying to ‘put him away.’ Now what do I do?”
Well, you could file for guardianship … the Court can order an evaluation.
“How does that work? Looks like our only choice.”
We’ll get information and fill out some forms, and file with the Court. We can ask the judge to order that your father submit to an evaluation, whether he likes it or not.
The judge has to appoint an attorney to represent your father, so that the Court knows that we’re not just trying to railroad him. The attorney will talk to your father and tell the Court what he thinks. Your father pays the attorney’s bill.
“What about your bill?”
Thanks for asking. If the Court gives you guardianship, the judge can order that your legal fees … my fees … are paid from your father’s money. But they don’t have to do that. Sometimes you just have to pay your attorney out of your money.
“I don’t have that kind of money!”
I understand. I can tell you I’ve never seen a petition for fees denied, but I know an attorney who has had that happen to her.
“I’ll talk to Daddy. Maybe he’ll see reason. Or whatever.” <wry grimace>
Two weeks go by. The phone rings.
“Daddy had a fall and hit his head. He’s in the hospital with swelling on the brain. I finally got the doctor to sign papers saying Daddy was incompetent. So I guess we don’t need the guardianship after all.”
That’s a relief. The real irony is that if your father’s power of attorney was effective when he signed it, you could just have started paying bills right away. But I guess that’s all water under the bridge …
The bank will want to see the POA and the certificate of incompetence. Hopefully they’ll let you sign checks now, under the POA, not signing your dad’s name.
“You mean they could say no?!?”
Well, since they can only let you sign checks if he’s incompetent, they have to be convinced that he’s really incompetent. They’ll probably want to send everything to their legal team to review. That can take a few days, or even a couple of weeks.
A week passes.
“The good news is that the bank called a couple of days ago to say I can sign checks. The bad news is that Daddy passed yesterday and now they’re telling me my POA is no good. They say something about a ‘letter of administration’ from the Register of Wills. I called them, and they’re sending me paperwork.”
Gosh. Sorry to hear. Let me know if I can help.
Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
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