Can you remove someone as power of attorney if they attained it though deception?

A fellow caregiver asked...

My mother was told by the doctor that she has mild Alzheimer's. As a result, my sister, unknowing to my mother, got power of attorney over her without her knowledge of giving it. My sister got this POA by putting a document for a insurance payment my was expecting and she told my mother she needed to sign it, but what it really was is a document for POA. My sister told me she did this when I asked her how she got POA when mom refused to believe or accept what the doctor has told her about her condition. When my mother was told that my sister has POA she didn't understand what meant and how did my sister get it. She doesn't believe she needs anyone taking over her affairs, and said she would let us know when. Well, I agree that my sister should be given POA for when the time is right, but I'm like my mother believe she should not be deceived into signing something she didn't know she signed. I would like to see along with my mother, that she make her own decisions about how she would want her affairs handled when the is right. My mother loves my sister very much and would more than likely give my sister POA of her own free will. It's very painful to see some-one you love be deceived this way with such dishonesty, I don't want to see her lose what is hers. What can be done to help my mother do this with dignity put her affairs in order. Thank you for your help.

Expert Answer

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.

A person who finalizes a power of attorney naming another person to act as his or her agent must know and understand the meaning and effect of the document. While mild Alzheimer's doesn't usually prevent this, trickery does. So if your sister truly used that sneaky tactic to get your mother to sign the power of attorney, the document is not technically legal"”and your mother is free to revoke it, or you or others could challenge it in court.

I don't in any way condone the trickery, but from a practical standpoint, that might not be what you want to happen. That's because your question raises a number of other questions"”and the answers might help you all find the way out of the thicket you're in now.

First, is your sister actually empowered to act as your mother's agent now? Some powers of attorney are written to take effect immediately, but very few of them. Most specify that the agent is empowered to act only when a person becomes mentally incapable of making his or her own decisions"”and that condition must be verified in writing by a doctor, sometimes two of them.

So the first step may be to take a hard look at the document that's causing this distress. If it's like most POAs, then it specifies just what you would all want to happen: your sister would take on duties as agent only if and when your mother is not able to act for herself. Most people who have POAs in place do it as a matter of good planning while they still have the good reasoning and capacity to do so"”and your mother needs to understand that.

If it's a usual POA that empowers your sister to act only if your mother becomes incapacitated, than she has no power to act now"”and she needs to understand that.

While two siblings are sometimes appointed to act jointly as agents under a POA, it is usually a bad idea, and wiser to name just one person for the job"”and you need to understand that. It sounds as if you may well have your hands full being the more sensitive, attuned one, anyway"”so there will be plenty other ways for you to help, now and in the future.

Second, do you want to start over"”or just get a clear understanding on the table? If your mother's alleged power of attorney document is one that takes place immediately, it sounds as if it's not what your mother wants. And if it's one that's slated to take effect only when absolutely needed, then in an ideal world, you could all agree about what it means and when it will"”and importantly, will not"”take effect.

A good and honest talk with all three of you at the table might help clear up the hurt and misunderstanding here. If that sounds too much like forcing a round of "Kumbaya ”in a bad way"”then you might call in another person to help with the conversation: a lawyer, a family mediator, even a trusted and knowledgeable family friend.

Another option, given the bad blood already spilled over the current document would be to start all over"”this time with full disclosure. Again, bringing in an objective third person might be a lifeline for all you family members who are feeling a bit lost at sea.