legal question about DPOA for relative with dementia

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island
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legal question about DPOA for relative with dementia

Post by island »

Hi all. This community has been so helpful and knowledgeable on a variety of topic and I'm hoping you can come through on this one.

Please forgive if I'm not using legalese correctly.

Sibling has (is?) DPOA (financial, medical, legal) for elderly widowed parent who has dementia and is in a nursing home for about 2 years and is now on Medicaid. Legal paperwork for DPOA was completed a few years ago when parent was able to make own decisions which is not the case now. Parent has no children in town, closest is DPOA who lives about 2.5 hrs away in same state. I live across country. Another sibling in Midwest is estranged from family and completely out of the loop.

Prior to onset of significant dementia parent refused to move closer to either of us. Wanted to stay in home town withy his significant other who still visits regularly since in the nursing home. To move now would not be possible.

Issue is sibling with DPOA wants to resign from the medical aspect and wants me to do it. Said it's just too much to do all.
I'm willing, but still don't know all that entails. I'm informed regarding his health and am comfortable talking with his physician, other med providers and the staff at his care facility, and have done all of that, but I'm also across country, 3 hour time zone difference, and no way would I be able to be there for any in person needs. Thought OK I could be primary and sibling back up, but sibling gave that a hard no.

Sibling with DPOA will still continue handling finances which I have no involvement in and am fine with, but if I took over medical DPOA would I be responsible for completing Medicare and Medicaid paperwork?, pay med bills? And if so, wouldn't I have to know parent's finances, taxes, etc?

We talk about his care and make joint decisions as is, but legally it's not my name on the paperwork or signing the checks.

How easy is it to officially legally change the paperwork to make me DPOA for medical now that parent has dementia and can't make own decisions?
I know parent would be fine with either of us, but it was logical to go with the child who lives closer and is able to visit home town fairly often.

My biggest concern is the distance and is it really lightening DPOA's load if I still have to go to sibling for anything involving finances?

I know we'll need to consult with an attorney, but hoping you can provide some info regarding the scope of duties for Medical DPOA and what it entails to make the change with parent has dementia.

Thanks!
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David Jay
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Re: legal question about DPOA for relative with dementia

Post by David Jay »

island wrote: Mon Jul 26, 2021 1:19 pmHow easy is it to officially legally change the paperwork to make me DPOA for medical now that parent has dementia and can't make own decisions?
Can you even become DPOA without appointment by your father? Unless a transfer of POA is specified in the Medical POA document, I understand that an agent cannot assign their power of attorney to a third party.

In that case it may require some form of guardianship.
Last edited by David Jay on Mon Jul 26, 2021 2:20 pm, edited 2 times in total.
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afan
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Re: legal question about DPOA for relative with dementia

Post by afan »

Unfortunately, doing the job for medical decisions will not require much time. We will not discuss the medical issues themselves but you will mot be choosing among risky but effective treatments. It will mainly be about routine matters and goal setting.

It is always good to have someone who cares about the person to visit but that is different than making decisions. The person with the POA for finances will manage the bills.

You should discuss what is involved for with the one who is doing it now but it sounds like you are getting the easier job in terms of workload. Harder emotionally, of course.
Last edited by afan on Mon Jul 26, 2021 3:54 pm, edited 1 time in total.
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cheese_breath
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Re: legal question about DPOA for relative with dementia

Post by cheese_breath »

IANAL, but I don't believe the sibling can simple 'give' the medical POA to you if (s)he doesn't want it anymore. That would require court approval and maybe medical guardianship. Maybe (s)he could retail the POA, but let you perform certain responsibilities as the representative(?) I don't know; that might require legal advice.

But IMO it's not a great idea for the medical and financial POA be different persons. Too much chance of conflicting opinions. You're concerned with parent's medical needs; sibling's concerned with expenses. For example, you might think parent would receive better care in a different, more expensive nursing home. Sibling might think the current one is just fine.
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Re: legal question about DPOA for relative with dementia

Post by gwe67 »

Sorry but legal questions are not allowed. "What's your favorite rock band" is OK.
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island
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Re: legal question about DPOA for relative with dementia

Post by island »

David Jay wrote: Mon Jul 26, 2021 2:16 pm Can you even become DPOA without appointment by your father? Unless it is specified in the Medical POA document, I understand that an agent can't assign their power of attorney to a third party.
I don't know David, that's what I was hoping to find out. I haven't seen the specific document and so far haven't found the answer thru internet search. There is no back up DPOA so figured there must be a solution if a DPOA becomes incapacitated or dies. And figure there must be occasions where people refuse to do it any longer. Idk,
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Re: legal question about DPOA for relative with dementia

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island wrote: Mon Jul 26, 2021 2:23 pm
David Jay wrote: Mon Jul 26, 2021 2:16 pm Can you even become DPOA without appointment by your father? Unless it is specified in the Medical POA document, I understand that an agent can't assign their power of attorney to a third party.
I don't know David, that's what I was hoping to find out. I haven't seen the specific document and so far haven't found the answer thru internet search. There is no back up DPOA so figured there must be a solution if a DPOA becomes incapacitated or dies. And figure there must be occasions where people refuse to do it any longer. Idk,
What happens is the individual becomes the responsibility of the court, and the court appoints someone.
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FIREchief
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Re: legal question about DPOA for relative with dementia

Post by FIREchief »

IIRC, most POA documents are typically drafted with a hierarchy of individuals (e.g. MPOA will be child #1, in the event child #1 is unable or unwilling to serve, MPOA will be child #2, etc., etc.). You need to see what the actual document says.
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Re: legal question about DPOA for relative with dementia

Post by galawdawg »

island wrote: Mon Jul 26, 2021 2:23 pm
David Jay wrote: Mon Jul 26, 2021 2:16 pm Can you even become DPOA without appointment by your father? Unless it is specified in the Medical POA document, I understand that an agent can't assign their power of attorney to a third party.
I don't know David, that's what I was hoping to find out. I haven't seen the specific document and so far haven't found the answer thru internet search. There is no back up DPOA so figured there must be a solution if a DPOA becomes incapacitated or dies. And figure there must be occasions where people refuse to do it any longer. Idk,
Have you asked sibling to send you the DPOA, medical POA, advanced directives for healthcare, etc? In what state does your father live?
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Lee_WSP
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Re: legal question about DPOA for relative with dementia

Post by Lee_WSP »

island wrote: Mon Jul 26, 2021 1:19 pm
How easy is it to officially legally change the paperwork to make me DPOA for medical now that parent has dementia and can't make own decisions?
I know parent would be fine with either of us, but it was logical to go with the child who lives closer and is able to visit home town fairly often.
You cannot. Your parent has to execute a valid DPOA, but since they are no longer mentally fit to do so, I can't see how you'll get it executed.

Are you listed as a backup DPOA?

I suggest finding a legal expert in the state in question and seeing if your sibling is able to allow you to act in sibling's stead delegate some of the duties.
Last edited by Lee_WSP on Mon Jul 26, 2021 3:18 pm, edited 1 time in total.
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Re: legal question about DPOA for relative with dementia

Post by bsteiner »

island wrote: Mon Jul 26, 2021 1:19 pm ...
Sibling has (is?) DPOA (financial, medical, legal) for elderly widowed parent who has dementia and is in a nursing home for about 2 years and is now on Medicaid. ...

Issue is sibling with DPOA wants to resign from the medical aspect and wants me to do it. ...
"Has" is correct. The power of attorney is a piece of paper or perhaps several sheets of paper. The sibling has it. It lets him/her act on behalf of your parent. The health care proxy (the term for it varies from state to state) is likewise a piece of paper or perhaps several sheets of paper. It lets him/her make health care decisions for your parent if your parent is unable to do so.
FIREchief wrote: Mon Jul 26, 2021 2:31 pm IIRC, most POA documents are typically drafted with a hierarchy of individuals (e.g. MPOA will be child #1, in the event child #1 is unable or unwilling to serve, MPOA will be child #2, etc., etc.). You need to see what the actual document says.
Correct, especially in the case of a person with three children.

The power of attorney may also allow the agent to delegate his/her powers.
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island
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Re: legal question about DPOA for relative with dementia

Post by island »

bsteiner wrote: Mon Jul 26, 2021 3:03 pm
island wrote: Mon Jul 26, 2021 1:19 pm ...
Sibling has (is?) DPOA (financial, medical, legal) for elderly widowed parent who has dementia and is in a nursing home for about 2 years and is now on Medicaid. ...

Issue is sibling with DPOA wants to resign from the medical aspect and wants me to do it. ...
"Has" is correct. The power of attorney is a piece of paper or perhaps several sheets of paper. The sibling has it. It lets him/her act on behalf of your parent. The health care proxy (the term for it varies from state to state) is likewise a piece of paper or perhaps several sheets of paper. It lets him/her make health care decisions for your parent if your parent is unable to do so.
FIREchief wrote: Mon Jul 26, 2021 2:31 pm IIRC, most POA documents are typically drafted with a hierarchy of individuals (e.g. MPOA will be child #1, in the event child #1 is unable or unwilling to serve, MPOA will be child #2, etc., etc.). You need to see what the actual document says.
Correct, especially in the case of a person with three children.

The power of attorney may also allow the agent to delegate his/her powers.
Thank you all. Since Bsteiner summed up from other posts I'll reply here to questions and hope you all have more answers or guidance.

-Parent is in PA.

-I haven't seen any documents yet, but have asked for them. My understanding is current sibling is only one on them and doesn't want to be an alternate if we do manage to change Medical POA to me.

-Sibling seems to think an attorney should just be able to redo the paperwork, but I keep saying, from the bits and pieces I've read, that doesn't seem to be the case now that parent has dementia and can't make decision for self. May have to go to court, conservatorship, guardianship, those are some of the terms I've come across and that doesn't sound easy or inexpensive.

-I'm sure sibling will still be involved in the medical decisions as I am too, but doesn't want to be the first to be called for every little thing. I get that. But if something more significant, I can't drop everything and be there, especially from across country. I would need to contact sib anyway. And I feel sad and guilty for all of that.

-If it's a matter of me taking over Medicare and Medicaid (called Med assistance in PA?) paperwork can I be allowed to do that without changing medical POA?

Thank you.
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Re: legal question about DPOA for relative with dementia

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The health care proxy will specify what the appointed person (s) is charged with. This includes medical treatment decisions, including involvement with physicians and hospitals, and medical billing. As BSteiner noted, it MAY allow the sibling to delegate powers. If it doesn't, and doesn't specify anyone else, then you can't make the medical decisions in place of the sibling. Nor can you get on the phone with Medicare.

Every DPOA we completed specified at least two people, and specified that one could step aside. They also specified the ability to delegate powers. When my MIL was declared legally incompetent, decisions fell to her husband, who couldn't have made any decisions anytime in their lifetimes, regardless of dementia. So we asked him to resign, and let his daughter make the decisions. If he didn't want to resign, then we were prepared to go to court to seek guardianship and make the decisions. He agreed to resign. His daughter then delegated all the financial and billing matters to me. I was not on the medical POA because my MIL was convinced I would pull the plug. I told her I would not - I would never plug it in to begin with... :twisted:
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island
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Re: legal question about DPOA for relative with dementia

Post by island »

RickBoglehead wrote: Mon Jul 26, 2021 3:49 pm The health care proxy will specify what the appointed person (s) is charged with. This includes medical treatment decisions, including involvement with physicians and hospitals, and medical billing. As BSteiner noted, it MAY allow the sibling to delegate powers. If it doesn't, and doesn't specify anyone else, then you can't make the medical decisions in place of the sibling. Nor can you get on the phone with Medicare.

Every DPOA we completed specified at least two people, and specified that one could step aside. They also specified the ability to delegate powers. When my MIL was declared legally incompetent, decisions fell to her husband, who couldn't have made any decisions anytime in their lifetimes, regardless of dementia. So we asked him to resign, and let his daughter make the decisions. If he didn't want to resign, then we were prepared to go to court to seek guardianship and make the decisions. He agreed to resign. His daughter then delegated all the financial and billing matters to me. I was not on the medical POA because my MIL was convinced I would pull the plug. I told her I would not - I would never plug it in to begin with... :twisted:
Hi Rick
Just to clarify... FIL was able to step aside for you and his daughter to take over DOPA because you were all named as successors in the DPOA document?

Daughter did health and you did financial. Which one of you was responsible for Medicare filing and healthcare bills?

Thanks
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Re: legal question about DPOA for relative with dementia

Post by MikeG62 »

I can’t comment on the legal aspects of what your sibling wants to do.

Keep in mind your sibling doesn’t want to do it anymore as they said it’s “too much to do”. So in the event you are able to step into his/her shoes, be prepared for this to be quite time consuming (and likely harder for you given the physical distance). Doesn’t mean you shouldn’t do it, just go in with your eyes open.

Sorry to hear there is a need for you to be put in this position in the first place.

I have two elderly parents who live 2,500 miles from me. No relative within hours of them by airplane. One has Alzheimer’s (although is still able to be at home) and the other has their own challenges. We’ve tried for years to convince them to relocate near one of us. Sadly it’s been a no go. The road you are heading on is one we aren’t far from being on ourselves.
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Re: legal question about DPOA for relative with dementia

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island wrote: Mon Jul 26, 2021 4:13 pm
RickBoglehead wrote: Mon Jul 26, 2021 3:49 pm The health care proxy will specify what the appointed person (s) is charged with. This includes medical treatment decisions, including involvement with physicians and hospitals, and medical billing. As BSteiner noted, it MAY allow the sibling to delegate powers. If it doesn't, and doesn't specify anyone else, then you can't make the medical decisions in place of the sibling. Nor can you get on the phone with Medicare.

Every DPOA we completed specified at least two people, and specified that one could step aside. They also specified the ability to delegate powers. When my MIL was declared legally incompetent, decisions fell to her husband, who couldn't have made any decisions anytime in their lifetimes, regardless of dementia. So we asked him to resign, and let his daughter make the decisions. If he didn't want to resign, then we were prepared to go to court to seek guardianship and make the decisions. He agreed to resign. His daughter then delegated all the financial and billing matters to me. I was not on the medical POA because my MIL was convinced I would pull the plug. I told her I would not - I would never plug it in to begin with... :twisted:
Hi Rick
Just to clarify. FIL as able to step aside for you and his daughter to take over DOPA because you were all named as successors in the DPOA document?

Daughter did health and you did financial. Which of you was responsible for Medicare filing and healthcare bills?

Thanks
I was not named on any document (as I recall).

FIL primary on MIL's paperwork. MIL primary on FIL's paperwork. Daughter secondary. Person named was noted with the ability to delegate powers.

We took care of Medicare and doctors office paperwork BEFORE dementia. We sent a letter to each medical practice that specified that the daughter was to be given full access to all medical matters, and that all bills were to be sent to our address. We also contacted Blue Cross (which provided the doctor's office coverage and prescription coverage), and filled out their paperwork (they have their own). We contacted Medicare and completed their form - I believe it's this one - https://www.medicare.gov/medicareonline ... s10106.pdf. We changed the address for Medicare to our address.

Anyone who thinks this is going to be a walk in the park is in for a rude awakening. Before being in independent and then assisted living, where we controlled medical access, they'd go to the doctor and not tell us. We'd get a bill - is it right? Did they really go? It was a real mess. We'd call and say "did you go to the doctor on May 3rd?" They'd look at their wall calendar (supposed to be the authoritative source) and say "I don't know". Between the two of them they couldn't agree on the day of the week. And that was before dementia set in.

We finally TOOK the financial stuff away. And yes, I mean TOOK. My FIL never wrote a check in his life, his wife did all the bills. They drove to the pharmacy to pay the electric and phone bills (yes, that was a thing). After 1/2 dozen bounced checks, and checks that never got signed but got mailed, I told my wife that either I was all in, or I was all out. We went to their house, and physically took the checkbook away. My FIL was in full agreement, my MIL was ready to kill me. At some point you have to step in when the mental capacity isn't there.

The "advantage" for OP is that the parent is in a nursing home, and the legally appointed agents can control medical access, i.e. pick the doctor, get involved in the treatment, say "no, I don't want the dentist to visit them", etc. Still a nightmare to go through.
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island
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Re: legal question about DPOA for relative with dementia

Post by island »

RickBoglehead wrote: Mon Jul 26, 2021 4:23 pm
island wrote: Mon Jul 26, 2021 4:13 pm
RickBoglehead wrote: Mon Jul 26, 2021 3:49 pm The health care proxy will specify what the appointed person (s) is charged with. This includes medical treatment decisions, including involvement with physicians and hospitals, and medical billing. As BSteiner noted, it MAY allow the sibling to delegate powers. If it doesn't, and doesn't specify anyone else, then you can't make the medical decisions in place of the sibling. Nor can you get on the phone with Medicare.

Every DPOA we completed specified at least two people, and specified that one could step aside. They also specified the ability to delegate powers. When my MIL was declared legally incompetent, decisions fell to her husband, who couldn't have made any decisions anytime in their lifetimes, regardless of dementia. So we asked him to resign, and let his daughter make the decisions. If he didn't want to resign, then we were prepared to go to court to seek guardianship and make the decisions. He agreed to resign. His daughter then delegated all the financial and billing matters to me. I was not on the medical POA because my MIL was convinced I would pull the plug. I told her I would not - I would never plug it in to begin with... :twisted:
Hi Rick
Just to clarify. FIL as able to step aside for you and his daughter to take over DOPA because you were all named as successors in the DPOA document?

Daughter did health and you did financial. Which of you was responsible for Medicare filing and healthcare bills?

Thanks
I was not named on any document (as I recall).

FIL primary on MIL's paperwork. MIL primary on FIL's paperwork. Daughter secondary. Person named was noted with the ability to delegate powers.

We took care of Medicare and doctors office paperwork BEFORE dementia. We sent a letter to each medical practice that specified that the daughter was to be given full access to all medical matters, and that all bills were to be sent to our address. We also contacted Blue Cross (which provided the doctor's office coverage and prescription coverage), and filled out their paperwork (they have their own). We contacted Medicare and completed their form - I believe it's this one - https://www.medicare.gov/medicareonline ... s10106.pdf. We changed the address for Medicare to our address.

Anyone who thinks this is going to be a walk in the park is in for a rude awakening. Before being in independent and then assisted living, where we controlled medical access, they'd go to the doctor and not tell us. We'd get a bill - is it right? Did they really go? It was a real mess. We'd call and say "did you go to the doctor on May 3rd?" They'd look at their wall calendar (supposed to be the authoritative source) and say "I don't know". Between the two of them they couldn't agree on the day of the week. And that was before dementia set in.

We finally TOOK the financial stuff away. And yes, I mean TOOK. My FIL never wrote a check in his life, his wife did all the bills. They drove to the pharmacy to pay the electric and phone bills (yes, that was a thing). After 1/2 dozen bounced checks, and checks that never got signed but got mailed, I told my wife that either I was all in, or I was all out. We went to their house, and physically took the checkbook away. My FIL was in full agreement, my MIL was ready to kill me. At some point you have to step in when the mental capacity isn't there.

The "advantage" for OP is that the parent is in a nursing home, and the legally appointed agents can control medical access, i.e. pick the doctor, get involved in the treatment, say "no, I don't want the dentist to visit them", etc. Still a nightmare to go through.
Thanks Mike. Understood re: delegation and secondary named in the paperwork.
Helps that you and your wife are handling the financials and healthcare under the same roof. More I think about 2 of us trying to officially split the med from financials and handle all this from opposite sides of the country sounds like a nightmare since I don't think they truly can be split and handled independently.
Medicare, Medicaid are already established, but doesn't one have to sign up for Medicare annually? I don't know about Medicaid other than definitely influenced by income and changes in income.

Duh, forgot paperwork would need to be mailed to me if I'm handling those things. But then sent to sibling for paying med bills and doing taxes and whatever else? Oh man, lots to think about. Thanks for this thought provoking discussion everyone.

The biggest question is how does one change DPOA for medical if parent now has dementia and no POA successors named in the paperwork? :confused
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Re: legal question about DPOA for relative with dementia

Post by RickBoglehead »

island wrote: Mon Jul 26, 2021 4:51 pm The biggest question is how does one change DPOA for medical if parent now has dementia and no POA successors named in the paperwork? :confused
You can't. You go to court to petition for guardianship. Or, the sibling does for financial with you for medical. Haven't done it, can't comment further. But a DPOA or POA cannot be changed if the person granting the authority has no ability to legally sign, and a person diagnosed with dementia or Alzheimer's is exactly that.

That's why it's crucial to do this ahead of time. Even if someone can handle everything, they can be hit by a bus or die from a heart attack. Always should be at least 1 alternate, if not 2.

IANAL
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island
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Re: legal question about DPOA for relative with dementia

Post by island »

MikeG62 wrote: Mon Jul 26, 2021 4:18 pm I can’t comment on the legal aspects of what your sibling wants to do.

Keep in mind your sibling doesn’t want to do it anymore as they said it’s “too much to do”. So in the event you are able to step into his/her shoes, be prepared for this to be quite time consuming (and likely harder for you given the physical distance). Doesn’t mean you shouldn’t do it, just go in with your eyes open.

Sorry to hear there is a need for you to be put in this position in the first place.

I have two elderly parents who live 2,500 miles from me. No relative within hours of them by airplane. One has Alzheimer’s (although is still able to be at home) and the other has their own challenges. We’ve tried for years to convince them to relocate near one of us. Sadly it’s been a no go. The road you are heading on is one we aren’t far from being on ourselves.
Thanks for sharing Mike. It's helpful to hear from your perspective as one who has ailing parents cross country. I can't imagine what it's like when no relatives or significant others are nearby. I wish you all the best.
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