In 2015 my sister and I realized we needed a personal care agreement after seeing the experiences of a friend with her parents. We recognized the future was coming fast with our mother. At that time my sister was doing the primary caregiving as she lived in the same area and I was 3 states away. We followed all the suggestions about details of the responsibilities, and monetary compensation, even included annual COLAs. But nowhere did anyone suggest we have an alternate caregiver section like wills, POAs, Trust agreements, etc....
Last year my sister passed from cancer. During the "battle" years, her death, and the year since, my mother's dementia has progressed significantly. Now we need a new caregiver agreement specifying me as caregiver, as the recipent of her money, etc...
So.... I'm her POA and every other designated anything. But this is a contract.
Obviously, it stands to reason, that I shouldn't be able to "act on her behalf" as POA and sign her name to a contract that on the surface appears to benefit me.
So this is a question about how to alter, change, modify an existing agreement or create a brand new one when your parent has dementia and circumstances change.
The degrees of dementia here are probably important. It's also important to know that in our case there are no dissenting family members. But that's not the case with others reading this question.
Sveral things from attorney: Just bc someone has dimentia doesn’t mean they loss all their legal rights. People with mild and moderate dimentia are usually able to still maintain own legal rights. Who cares that they don’t recall date, where they placed something, what they last ate, three items to memorize, or who President is. Do they need to to function? No. That is irrelevant to legal rights to make a Durable POA. those are tests by doctor for home safety.
Many people can’t say these things and they do NOT have dimentia yet have all their legal rights.
An attorney told us to write a statement that correspondences with States’ Probate Code in CA. Law may be differnt in your State so look that up first. Read Code sections for laws on the definition of “competence” in estate planning. In CA It is that the Senior can recall who their family is, what they own (dimentia patients generally still know they own a home), nature of what a will, Trust, Durable POA do, and their decisions in estate planning and the consequences of their decisions when making estste planning documents like POA, Will, Trust.
The five daily living tasks are irrelevant in determining competence to make own legal estate planning decisions. This is because one may be fully physically paralyzed but have a brain fully healthy. So for estate planning under CA law in Probate code a person only needs the above I already mentioned.
Write a half page statement and have parent’s regular review it and doctor sign it. It should say similar to this: I Dr. _____ have seen patient ___ for more than seven years. Patient knows who her family is, what her property is, the decision and the consequences of making her will, POA, Trust, …. Then doctor signs and dates. Not a big deal. We get one two times a year from doctor so my mother can legally do things.
Most adult children are so fast to have doctor instead certify that parent is unable to care for him or her or incompetent. They do this, because most Durable POA only take effect when person is deemed incompetent by two licensed medical doctors at least thst is legal standard in CA. Look up in your State’s Probate Code definition of incompetent and competence for estate planning. It’s different than for contract law under a Civil Code.
And the adult child wants to handle things because they don’t like way parent does with lessened memory but then gets exhausted prematurely. Adult children need to stop rushing to get POA active so long as parent is safe. Memory loss isn’t necessarily unsafe. Take knobs off stove and oven if memory is a concern and parent uses those. They can operate microwave safely most times. Severe dimentia will come about and adult children will not be so exhausted when that time comes to fully care for parent.
If no doctors have certified your parent as unable to care for him or herself, then provide at an appointment a document as I mentioned above for Dr to sign that your patent is able to know his or her family, knows his property, understands nature and consequences of his or her decisions related to estate planning. Then this gives credibility to your parent is able to make a new Durable Power of Attorney or whatever other estate planning. You have a medical document saying they have their legal rights to do so to address anyone who may protest the new POA.
Again, all too often a family member says oh, parent can’t recall things so POA needs to be activated. That is irrelevant to estate planning rights under law. So long as they know who their family is, and all the above I previously stated, they still have own legal rights even if have dimentia.
I always caution people that when you need EXPERT medical or legal advice the people to see are the experts. Forums are full of opinions, and has some very very bright people, but in legal matters you cannot afford to take the wrong advice.
I sure wish you luck and hope you will update us on how you can approach this once you get good advice.
I can't figure out if you want to do all this or you're being coerced into accepting full responsibility. I'm not sure that a person who suffers from dementia can legally sign anything, but the lawyer does. You might also want to ask what you should do if you decide to resign from being "POA and every other designated anything."
Always have a "Plan B" so that you can choose to live your life, your way
I am so sorry for all the travail, the loss of your Sis, and now your Mom's worsening condition. I think you have a long history and will be great at managing things for the best for your Mom. Good luck.
How does Moms Will read? Does it leave her assets to you and sister to be split? If one dies then the other inherits? The only time it trickles to grandchildren is if its stated in the Will.
Are you POA because you were named secondary? Any compensation should be in the POA. Mom can no longer do a caregiver agreement. So if your sister was compensated, you can't be unless in the POA. Moms money can now only used on her. Yiu cannot profit in any way unless in writing.
But then, if your any only child and the only one to inherit, who is going to question wgatbyou do unless you file for Medicaid then you have to back up every withdrawal they question.
You would need to take your Mom to the CELA (certified elder law attorney) who would interview her regarding her capacity. If she has more than mild dementia, it probably won't fly. Memory is less of an issue than comprehension in this case. If the attorney deems she does not have capacity, then whatever legal documents she created prior are the permanent ones going forward (Last Will, Will, PoA, etc). She will no longer be able to "...modify an existing agreement or create a brand new one".