Q: How to get another POA for my mother who has dementia in FL? My brother is the POA, has terminal cancer. What to do?
Mother did not appoint an alternate on the POA. She now has dementia (I don't think she will have lucid moments anymore ) & my brother has terminal cancer. I am concerned if he dies, who will be my mothers POA. I am currently her health care proxy. Will I be able to make decisions for her after my brother dies? How much does filing for guardianship cost? What if I don't file for guardianship before my brother dies? How will this affect making decisions for her?
A:
It depends on how bad the dementia is. She needs to be able to understand what she is signing in order for a Durable Power of Attorney to be effective. This is called a “lucid interval” - you can read more about it at the link below.
https://www.elderneedslaw.com/blog/lucid-interval-and-capacity-to-sign
Let me know if you need any other assistance.
A:
If your mother has dementia and is incapable of understanding what she is signing and why she is signing it, then you cannot get a power of attorney. You're going to have to file for guardianship in the county in which she lives. If she has dementia but is capable of understanding what she is signing, why she is signing it and who she is giving authority, she may be ok to execute a new document. My policy is I will not prepare that document or permit someone to sign it unless I have a doctor's note telling me that the person is capable of doing it.
If you go the route of a new power of attorney, my policy is that the person executing the document must make the phone call and schedule the appointment because I do not want any appearance that they person was under duress to do it.
I would highly recommend that depending on your mother's level of dementia, that either you or she contact an attorney.
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