If I get my mother with Alzheimer's declared "incompetent," will I be able to sell her home?

2 answers | Last updated: Sep 21, 2016
Chard asked...

My mother has Alzheimers, she is in an Independent Senior living community, which her doctor highly suggested, she lost her drivers license and decided to move there. She can not go home because of her fast decline, but we need to sell her home and vehicle to help pay for the Senior living. I have Durable Power of Attorney and Health Power of Attorney. Her lawyer said that is not enough to sell her house. She is still the one who has to sell it. But she is not capable of making that decision. I don't want to go to court and claim her incompetent. If I get a signed document from her doctor saying she has progressed far enought that she is no longer capable of makeing decisions on her own, is that good enough? I read that you can have that from the doctor added to the power of attorney and that is enough. I just need to know what I can legally do in the state of Nebraska. I thought the power of attorney was able to do this if the person was incapable of doing it. Please help.

Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

The lawyer may be right that you have no authority to you're your mother's home and car if you have only been appointed an agent for her medical care.

But take a close look at the document that you have that' you say is labeled a durable power of attorney. If it is a durable power of attorney for finances that meets the requirements of Nebraska law, it may well specify that you can sell your mother's property on her behalf.

It is true that many powers of attorney specify that they go into effect only when a doctor, or sometimes two, declares that they are mentally incompetent. But that is not something that can be added after the fact.

If it isn't clear from the face of the documents whether you have also been made an agent for her finances, it may be worthwhile to have a lawyer take a quick look at the documents you do hold. It is not clear whether the lawyer you mentioned actually gave them a looksee or is experienced in the area of elder law.

Finally, if you do not have the authority to deal with your mother's finances, and she is not able to do it herself, your best option may be to secure an adult guardianship or conservatorship for her. As you mentioned, that would require a judge to declare that your mother is not capable of making such decisions on her own. And that can feel like a difficult step. But practically speaking, it is no different than having a doctor declare the same thing.

For more on the issue, see Caring.com's Adult Guardian and Conservatorship section at www.caring.com/adult-guardianship.

Community Answers

Chard answered...

So if the Durable Power of Attorney says I am her agent for her finances and doesn't have anything in there about going into affect only when a doctor claims her mentally incompetent. I don't have it in front of me but it did say something about when she is incompentent or incapacitated then I become the guardian. Does that sound right.