I'm concerned that my mother's power of attorney is no longer capable, what can I do?

1 answer | Last updated: Sep 29, 2016
A fellow caregiver asked...

my mother is living with me and husband due to dementia. I am concerned because my legal assistant sister- her POA and executor has a document in mothers papers she had her sign allowing only her to make medical decisions for mother. I am concerned about the liability I may suffer because my sister is not available to prepare medications; she has also not been immediately available when I have needed to take Mom to hospital in a couple of emergencies. Most important that sister has recently been diagnosed with dementia herself.

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.

It is not likely that you will be liable for any of your actions as long as you are acting in your mother's best interests.

But that still leaves the messy-sounding situation of your sister having responsibility for your mother's medical decisions--or at least thinking she does.

Your sister can be legally relieved from acting as your mother's agent in the power of attorney if you can show either that she is not acting in your mother's best interests, or that she is not mentally capable of taking on the role. It sounds as if one or the other, or possibly both, might be true.

But you will need to have some pretty good and direct evidence that what you say is true"”the more tangible, the better, such as specific dates and times you were unable to reach your sister in cases of your mother's medical emergencies.

If you have that, you may be able to persuade the local court"”it is usually the superior court that enforces powers of attorney"”that your sister should be removed. If there is a back-up named in the document, as is most often the case, then that person may be appointed to take over the job.

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Take a good and honest look at what is happening, though. Even if your sister is empowered as your mother's agent in a medical power of attorney, she need not be the one to give out every pill or salve. It may be a good idea for you and your sister to visit the doctor along with your mother and get specific directions about what is considered general daily maintenance and what is more extraordinary care that make require an agent to step in an act.

Of course, if your mother remains mentally competent to make her own decisions"”and many people do retain this ability despite their dementia"”then she should be able to direct her own medial decisions or to make a new power of attorney appointing a different agent to act on her behalf.