Dear Family Advisor

How can I stop my brother from taking power of attorney for my mother away from me?

Last updated:

September 08, 2008

I'm having problems with my brother and his family. I have power of attorney for our mother's health and all other matters. My sister-in-law is trying to get my mother to change things. My mother has short-term memory loss and at times doesn't remember things she said five minutes before. I've been living with her and taking care of her for more than a year since my dad got sick and passed away. What can I do to protect my mother and not have any trouble with my brother and sister-in-law, which they are threatening to cause?

Having power of attorney for a parent is a difficult and, it may often seem, thankless job. But you are, of course, much more to your mother than the person whom she has entrusted with legal responsibilities. You're also her daughter and caregiver, and you need to protect her and make sure she receives proper care.

Although your mom gave you power of attorney, she's legally free to change her mind and revoke this. But the only way for your brother, or sister-in-law, to change it is by having her sign a legal document. Since you write that she has short-term memory problems, it's conceivable that she could be talked into signing a document that transfers power of attorney to your brother without fully realizing what she's doing.

It's not fun dealing with siblings or legal issues, but there are times when you have to step up and speak out to do what's right for a loved one who's vulnerable.

My primary advice is first to try to work this out amicably with your brother. At the same time, I'd also suggest that you make sure that everything you're doing on her behalf is above board and documented. All her care and financial records need to be in order in case, somewhere down the line, you need to prove that you're the best person for this role and that you've been doing a competent job.

The very best outcome for your mom would be for her son and daughter to find ways to love and care for her together. Try to find a way to get everyone's feelings and concerns out in the open -- and do the best you can to listen to others' perspectives with an open mind.

Some of the things you'll want to determine: Is this problem stemming primarily from your brother or your sister-in-law? Are they concerned about certain health or financial decisions you're making? Does your brother want power of attorney for your mom? Would he and his wife stand to gain financially from a change? Is this even about your mom or about other issues, such as power or manhood?

After everything is out in the open, sit down and have a candid conversation alone with your brother. Although his wife is already involved, this is at the core an issue between two siblings. Ask him if he's felt pushed out or left out of the loop. We caregivers don't mean any harm, but sometimes it's easier to just do the work than to explain to others how to do it.

Assure your brother that your mother's care is your utmost concern and you're managing her affairs to benefit her, not yourself. Let him know that having power of attorney and being primary caregiver to your mom are huge responsibilities that take an enormous amount of time and effort. Does he know everything that you do? If not, spell it out for him. Is he really ready to take all of that on?

How does your brother perceive women's roles? Make sure he knows that you're not going to do all the grunt work while he manages -- or benefits from – your mother's money. Encourage him to take an active role in caring for her too. I'm sure you need the help and support.

If your brother goes ahead and talks your mom into changing power of attorney or takes this to court, and if you don't feel that he's considering her best interests, you need to be prepared to protect your mom and her rights.

If you suspect that he can convince or "trick" her into doing something without her realizing it, you may want to have her reasoning and cognitive abilities tested. If she's considered to have severe memory loss or to be unable to make legal decisions for herself, the court will consider this before making any changes.

If you're really worried that this is an unworkable situation, you might also consider talking to an elder law attorney about applying for conservatorship or guardianship. This would allow you to make important decisions for your mother if she's deemed unable to make them for herself.

I hope that your brother wants only what's best for your mom and will work with you to make sure she gets this. But as her caregiver and daughter, you're very much connected to her. You're her "voice," and you may have to fight for her care. Do what's best for your mom and trust that it will be right for everyone else involved.