Can my brother keep POA and remain executor while I become mom's legal guardian with physical custody?

Hospice has considered dropping her from their services because she is doing so well. She is a lot better now than when they enrolled her. She won't have any problems with the transport. She would be propped up on pillows on a bed in a non-smoking RV with her potty chair at hand and we would stop as often as she wants. She has visited us in TN before, she used to travel a lot, and she thinks it would be another adventure - nothing that would stress her for cause her to panic. She clearly understands the situation. Her primary doctor recommended she move to TN and would not have said that if he thought she couldn't handle it.

I guess I am stuck legally and therefore Mom is stuck in an unsafe and unhappy position until she falls and injures herself bad enough to force her into a nursing home against her will when she could be safely living with caring family members. What a sad world we live in.

You can petition for Guardianship, but obviously your brother will object to it. In cases like this the court appoints neither of you, but assigns an independent guardian that neither one of you will like.

Since she is already on Hospice, she may not survive the transport. At best it will actually shorten her survival, because she will panic and be very distressed.

Thanks for the input.

My brother won't even consider or discuss the thought of her moving in with me. If I bring it up, he just calls me a control freak and runs out and slams the door or gets into his car and locks the door. We were always close until now so I am floundering. His wife just yells at me to stop pushing. He has documented every penny spent for maintenance, mileage to her house for every visit, etc. in the last 17 years since our father died. I think (guessing) he wants to purchase her house for the "debt" owed to him, put her in a nursing home, move his son and daughter-in-law into her house, then he can sell his son's house in TN that he has sunk a lot of money into and use those profits to pay other debts he has hanging over his head.

Mom was in an abusive children's home as a child and was severely traumatized by it. She has also watched some of her friends have bad experiences in nursing homes. She also has a cat that she loves dearly. If put into a nursing home, they would put Mom in a bed, put the side rails up to keep her from trying to walk, and she would simply wither away and die of a broken heart. Her primary doctor (that my brother won't let her see anymore) said Mom would promptly die if put into a nursing home and he preferred she move in with me. That doesn't seem to phase my brother. He had her put into a nursing home for 5 days of respite care last summer for no real reason with no advance notice to me or Mom. They dosed her up on unnecessary pain meds that they know she can't tolerate then had her diagnosed by a doctor (that had never seen her before) as incompetent when she was so loopy she didn't know which end was up. When the nurses didn't come to help her to the bathroom often enough, she tried to walk there by herself and fell. They didn't even take care of her dentures for her. She was totally freaked out and begging me to get her but they wouldn't release her before the 5 days were up. She became more adamant than ever that she did NOT want to ever go to a nursing home again.

Mom has short term memory problems and she has aphasia, a result of side effects of previous pain medications and/or hitting her head from multiple falls from the medications (before I finally got her off of them!), but she is not incompetent. A social worker visited with her for about and hour and a half and agreed Mom was sound enough of mind to decide where she wanted to live.

Due to injuries from the previous falls, she can no longer walk on her own. I get her up, dress her, change her clothes, bathe her, etc. My brother leaves her alone most of the time to do everything by herself other than helping her get up our of her recliner in a manner that has pulled a muscle in her chest. He has taken away the multi-vitamins and calcium and vit. D supplements prescribed by the doctor. (The hospice nurse, a buddy of my brother and sister-in-law, said the supplements were no longer needed for long-term benefits because she is so old, she could choke on them (she has no problems swallowing pills), and they could be toxic with other meds. Mom is only on one med - a maintenance antibiotic to prevent UTIs because she has a tiny fistula between her colon and bladder. The supplements won't interfere with it as long as it isn't taken at the same meal. The nurse also said sitting in the sun would give Mom vit. D anyway. (Malarkey. She doesn't go out to the porch in the cold and in the summer she sits out of the sun wrapped up from the neck down.) She is only about 4'7" tall and is not heavy but my sister-in-law said we should never offer meals or foods unless she asks for them, then only give her tiny portions and no seconds with no explanation. I think that only encourages her to continue to lose weight despite her former primary doctor always working to try to maintain what little weight and strength she had.

I have her use a potty chair next to her recliner during the day and by her bed at night. My brother only lets her use it during the night, making her get up and down twice as much (using a transport chair) when using the toilet and she has to get herself up and handle her own clothes and such in the bathroom. He wasn't even helping her with her dentures and they got downright scummy with a nasty brown film because Mom couldn't stand long enough to brush them herself. (I had to use vinegar to soak/scrub it off. I pitched a minor fit and I think now they brush her dentures.) He gives her strong coffee all day even though it irritates her bladder (amplified because of the fistula) and it makes her get up over and over feeling like she needs to urinate when she doesn't. It also disturbs her sleep. The extra exertion, lack of sound sleep, and lack of supplements all contribute to her suffering from confusion when he is staying with her. Then he reported to hospice (he put her in hospice early last summer so he could use respite care if needed) that her repeated attempts to urinate and her confusion are signs of mental instability, building a case to have her put into a nursing home. Mom said my sister-in-law makes it clear that she is unhappy with the burden of caring for her. The hospice nurse is supposed to visit her weekly but she doesn't come when I am there because she doesn't want to, or my brother doesn't want her to, answer any of my questions so Mom goes 3 weeks between visits.

I am the only thing standing between Mom and a nursing home and rapid death. I lift her from under her armpits to reduce her strain, use the potty chair to reduce her exertion, change her clothes, wash her up, give her half doses of the recommended supplements (quarter dose with lunch and supper to make sure they can't be "toxic") in a chewable form (so she can't "choke" on them), make sure she gets very balanced meals so she doesn't need the vitamins, weaken her coffee like she likes it and only serve it 2 or 3 times a day at meals, and I give her water between meals to lessen her bladder irritation. The supplements help with nerve transmission and seem to help her cognition. I read to to her even though the hospice nurse said I shouldn't because "the big words might confuse her." She is still interested in many things and loves me to read books and anything/everything to her and google umpteen things for her. We watch news, politics, movies and other shows on tv together. She's happy and has a strong will to live when I am there. All of her vital signs are still perfect and I think she may still have years of life yet.

I feel like my brother is just waiting for her to fall and hurt herself again, then he can put her in the nursing home and take her house and estate. Family grapevine says he believes his POA will be transferred to me if she lives with me for 3 mo. or more and he doesn't want to lose that or possibly the power over her estate. I don't want her house or her money.

I just want to take care of her. I have wheel chair ramps and an RV to comfortably transport her to TN. Her Medicare will cover her medical services here. Respite care here, if absolutely necessary, would be in our home and not in a nursing home. She could bring her cat and treasured possessions and would have her own bedroom, tv, etc. She also misses her grandchildren and great grandchildren and she would get to visit with them frequently here. We have a lift chair. (We bought it for Mom to use in Ohio but my brother won't let her use it, saying she might play with the controls and throw herself on her face. I had it plugged into a jack strip out her reach that I turned off when I wasn't actively using the lift mechanism. We used it for 2 weeks and it really helped both Mom and me but he flat out refuses to let me use it and I had to bring it back home to TN.)

Mom cries and begs to come home with me every time I leave and counts the days until I return. If I didn't have a husband, house, business (self employed computer consulting), and grandkids to care for in TN, I would move in with her in OH full-time but I can't do that now. Up until we had to start taking care of Mom round the clock in her home a year ago, my brother has been wonderful about helping her. I don't want to charge him with elder abuse to get legal guardianship, so I'm looking for a way to convince him that he can keep his POA while she lives with me. He said he can't sign things for her medical care if she isn't in Ohio. I think he could handle it via scanner/email (Mom has a scanner). If I can legally sign a statement to say he can keep her POA while I get legal guardianship and physical custody, I think I might be able to convince him to let her live with me. Or just maybe convincing him that he can handle all necessary signatures via the internet might work.

I just don't know what my legal options are and really can't afford to pay for an attorney only to be told "none." Between not being able to effectively work at our company now, driving expenses, purchasing supplies and food for Mom - I provide every morsel when I am there with no reimbursement - my budget is tight right now.

Any help figuring out how to get around this and save Mom would be greatly appreciated. It is hard to care for her but I cherish every minute I get and I want her life to be as happy as possible for as long as possible.

I apologize for the long post. I guess I needed to vent.

POA ends when the person dies. It is not related to executor status.

Guardianship, as igloo explains, supercedes POA. The guardian makes all decisions. I don't know about "temporary legal guardianship with physical custody." Consulting an attorney who specializes in Elder Law in TN about how to go about this, including the residence issue, might be wise.

But surely the easiest thing would be for Mom to change the POAs to you. Explain to her that this is how you will be able to have her move in with you. She can do this as long as she understands the concept of appointing someone else to act for her. Your brother does not have to agree to this (although it would be nice if he does.) Since there may be some conflict over this issue, use an attorney to get the POAs changed, if that is the route you take.

Guardianship overrides DPOA.
The problem -at least to me- is that mom would need to live in TN in order for you to file for guardianship for her as you are a resident of TN. A judge in OH isn't likely to appoint you as her guardian as they usually want the guardian to be a resident within their jurisdiction. If there isn't one, the judge can pretty easily name a guardian from a list he has at the ready for vetted approved by the court guardians. If your brother did not want to become moms guardian, court would appoint an outside one.

If mom is still competent and cognitive, she can choose to change her DPOA & MPOA to you and then move from OH to TN to live with you. Brother can remain her executor as per the terms of her existing will. Will does not need to change. So you handle mom;s care and finances while she is alive & living with you in TN. And bro handles her $ as executor of her estate. Would bro go along with this?

Does he realize the cost of NH? At an average NH @ 8K per month, mom's $ is likely to be rapidly diminished or gone in quick time.