Q: Stepmom was diagnosed with dementia. Afterwards, her son got POA but my dad is alive, competent and still married to her
My stepbrother has been mostly out of the picture and not present in my stepmoms life for over 30 years, only contacting her for Christmas, her birthday and mother’s day. She was diagnosed with dementia and he immediately got her to sign medical POA to him behind my dads back and now he has checked her into a facility and my dad can do nothing. Now, my dad has received a letter from the bank saying that my step brother has added his name to the account since he has POA. So we are assuming somehow he now has regular POA. He has also drawn out $150,000 and now has put it into an account with only my stepmoms name. Which means my dad has no access. This left only $8,000 in the joint account that my dad has access to. Does my dad have any rights or is there anything he can do? My dad would prefer to have her at home and have in home care for her.
A:
Some people in the early stages of dementia still have legal capacity to contract, the level of legal capacity required to sign a Durable [Financial] Power of Attorney.
However, a Medical Power of Attorney, not a Durable [Financial] Power of Attorney, gives someone the authority to complete a resident's agreement with a skilled nursing facility. It still does not give someone authority to determine residence: only the person herself or a guardian of the person can do that.
A spouse can apply to become Community Administrator, administrator of the marital community's finances. Like guardianship, this trumps a Durable Power of Attorney. Another step would need to be taken to recover the money wrongfully transferred to a separate account.
A spouse also has preference over a child in becoming Guardian of the Person.
Rahlita D. Thornton agrees with this answer
1 user found this answer helpful
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
