My grandma failed her mental cognetive test, Can another family memeber take her and get a new power of attorney?

1 answer | Last updated: Sep 14, 2017
A fellow caregiver asked...

The 2nd power of attorney is notarized but how can it be legal if she cant make her own descions?

Expert Answers

Whether your grandmother can make a valid, legally enforceable second power of attorney (POA) document, which supersedes an earlier POA document, depends on whether she has what is called "legal capacity" to do so at the time. The definition of legal capacity is somewhat complicated, and varies a bit from state to state, but basically means that she understands the nature and consequences of what she is doing, and that she has the mental capability to resist undue pressure on her regarding the decision.

You report that your grandmother "failed her cognitive test." The problem with giving you a good answer to your question is that "failing" a cognitive test could mean many different things, both medically and legally. In other words, the test might be designed to determine whether she has the beginnings of memory loss or early stage dementia of some sort, but it might not have determined that she no longer has the capacity to make decisions for herself. The test might not even have been designed to test her present mental capacity but only the progression of memory loss or other cognitive functions.

On the other hand, if the test was part of a comprehensive medical diagnosis of your grandmother, which determined that she is no longer capable of caring for herself, including making legally binding decisions, then she would no longer have the legal capacity to make a new POA document, and any such new document would probably not be legally valid. So, you need to find out what this test was and what her doctor now says about her mental capacity. Because of health care privacy laws, probably only her attorney-in-fact -- the person given authority under her first POA document -- has the right to get this information from her doctor.

If you believe that your grandmother was no longer legally competent at the time she executed a second POA, especially if supported by her actual medical records, you or other family members and the original POA can go to court to have the second POA declared invalid. This will require the help of an attorney, though. If you cannot afford an attorney, you might also contact the office of the "public guardian" in the county where your grandmother lives. This is a county office that looks after the financial well-being of people who are vulnerable, like your grandmother, but who do not have family members who can protect their interests. You can find the public guardian's office by looking at the county's online web site or by looking at the county's departmental phone numbers in the phone book.