Q: If my brother has Power of Attorney for my mother but I am her legal guardian, can I overrule his financial decisons?
She gave him POA several years ago, but I am designated Guardian in Advance of Need. She has advanced dementia and he is writing himself checks from her account.
A: You said you are "designated guardian in advance of need". You did not say that you have been appointed by the court as her guardian. There is a big difference. A designation of guardian is just something to indicate whom your mother's preference wants to be her guardian should the need arise. But only a court can appoint someone to be a guardian. It is not something that your mother or anyone else has the authority to do outside of the court. Not until a guardian (of the estate) has been properly appointed by a court, her POA (your brother) will have the legal authority to act on her behalf. If you think that your brother is not fulfilling his duty, you can apply to the court to get a guardianship over your mother. Once you are appointed as a guardian, the POA will be terminated and you can make financial decision on behalf of your mother. Contact an attorney who is experienced with guardianship (either a probate attorney or an elder law attorney) to start the process.
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