Ask the Attorney: How Do I 'Legally' Take Care of My 'Incapacitated' Mother?

Dear Ask the Attorney:

I am the only caregiver for my parents.  My father passed on January 12th and my mother, due to bipolar and early dementia, changes the power of attorney every time she gets mad.  As a disabled adult living in the home for more than 6 years now and having doctors, nurses , neurologists and other professionals commend me on my taking total care of all things medical and financial, what can I do ?  Do I have to have my mother considered incompetent or incapacitated by our family psychiatrist in order to legally take care of affairs that now other family members, aunts in particular, who did nothing for 6 years are now trying to do through bullying and other ways.  They are harassing me and have caused much emotional distress.   They have confused my mother and poisoned her judgment. Any information is greatly appreciated.

KR

Our guest blogger today is Christopher J. Roman, Esq. Mr. Roman is an associate with Einhorn Harris in our Trusts & Estate and Taxation departments.

Hi KR:

Thank you for submitting your question to Ask The Attorney.  I am sorry to hear that you have been dealing with such a difficult situation.  Fortunately, there are steps you can take to resolve many of the issues you are having.

You mentioned that your mother has a power of attorney that she changes each time she gets upset.  That issue is the problem with a power of attorney for someone in your mother’s condition.  A power of attorney is a helpful and powerful document that allows an individual to appoint another person to manage her financial affairs.  To sign a power of attorney or revoke an existing power of attorney, an individual must have “capacity”.  In theory, if your mother is incapacitated, she would not have the capacity to revoke the power of attorney she signed in favor of you.  Practically, however, your mother may be confused where she alone or with the “help” of someone else (a scheming aunt, for example) will revoke her power of attorney and appoint someone else, which creates confusion as to which power of attorney is valid. 

Under these circumstances, a more significant step must be taken.  You are on the right track with your suggestion that you should ask her doctors if they will declare her incapacitated.  If your mother’s doctors do declare her incapacitated, then the next step is for you is to file a guardianship petition with your county’s surrogate requesting that your mother be declared incapacitated and that you be appointed as her guardian.  A guardianship is a legal proceeding where the court will determine whether an individual is unable to manage her personal and financial affairs and, if she is, appoint a guardian to act on behalf of that individual. 

As a result of the court declaring her incapacitated, your mother would no longer be able to make legally binding decisions regarding her property or personal affairs.  For example, she would not have the power to revoke your appointment as guardian or enter into legally binding contracts.  Instead, you would be responsible for making those decisions, and the court would remain in the background if a conflict were to arise.  Since you mentioned your aunts, if you do file a guardianship petition, they will be notified and may oppose your appointment as guardian.  The court would be responsible for determining who would be best equipped to be the guardian.

Although there is a lot of information online as to guardianships, it can be a very complicated proceeding, especially if your aunts file an opposition.  I would recommend that you contact an attorney who specializes in guardianships to assist you in the process.

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