How can we get my mother in law to assign a power of attorney besides getting a guardianship?

1 answer | Last updated: Sep 14, 2017
Purpletabbycat asked...

My Mother in Law is 83 yrs old and has been diagnosed with full Dementia and the onsets of Alzheimer's. She is a very controlling and stubborn woman and is refusing to sign a Power of Attorney to give her son(my husband) financial and medical control. She keeps saying she "has all her marbles" and that "she is not sick enough to be LOCKED UP" but she does have severe short term memory loss.

What can we do short of Guardian Ship, since she lives in NC and we live in Arizona? We had her in a Alz/Dem.facility, and then my Sister in Law went and took her back home last weekend because her mom said she wanted to go home and that she did not belong there. My sister in law is too weak to stand up to her mother even knowing her deteriorated mental state. So we are left to pick up the pieces and try and get my mother in law back into the facility we had her in. What can we do to either get her to sing a Power of Attorney or is there another way we can get her back there without having to go the Guardianship route as we really can't afford to move back to NC. Thank you for any help you can give us. God Bless, Colleen H.

Expert Answers

Barbara Repa, a 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.

As you know best, the situation you describe is complicated"”and seems to be even more complicated due to the conflicting personalities and opinions on how to best handle things.

The truth is that there is nothing you can do to force a person to sign a power of attorney. Keep in mind that powers of attorney usually don't take effect until a person is mentally incapacitated"”and short-term memory loss, without more, won't activated the authority under them. Before a POA agent can act, the person for whom he or she is acting must usually completely lack the ability to handle finances or make medical decisions. There are some POAs that take effect immediately upon signing, but this is rare when a person is hesitating to act in the first place.

There is also the issue of whether it would be efficient for your husband to serve as both financial and medical agent, especially as long as his mother lives in another state.

It also sounds as if your sister-in-law might object to your husband being named sole guardian for your mother"”and this can signal the possibility of a long and ugly legal battle. In such cases, courts will intercede and take evidence about who is better suited for the job and why. You can imagine that these battles are often protracted and painful, and that slur-slinging family members rarely recover from them.

If one of the children is better at finances and the other better at wading through medical red tape, one possibility may be for them to divide up the power of attorney duties, since neither one seems to want to be cut out of the duty of caring for their mother.

That still leaves the biggest question of where and how your mother-in-law should live. In an ideal although not easy world, your husband and his sister would be able to sit down together and discuss and arrange their mother's care"”taking into consideration her wishes and needs as she expresses them and as noted by the doctors and others who oversee her care.

Some doctors are willing and able to sit in on such family conferences and even help suggest a solution or a compromise. If no such doctor is involved, they might consider going to an experienced family or elder care mediator who may be able to help them reach a solution that works in their mother's best interests.