Can you transfer power of attorney for Alzheimer's patient in late stages?

7 answers | Last updated: Dec 03, 2016
Rick from baltmore asked...

Can you transfer power of attorney for Alzheimer's patient in late stages? My mom lives in New Jersey. Her stepson presently has power of attorney and he wants to transfer it to me, her blood son. Mom has late stage Alzheimer's. Can this be done?

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.

Unfortunately, if your mother lacks the capacity to give her legal consent to the change, it is probably too late to take this action. Your only option may be to secure an adult guardianship or conservatorship for her, asking a court to appoint you as her conservator.

You may want to hire an attorney to help with this transaction. You can find out more by contacting the local probate court.

Community Answers

The caregiver's voice answered...

I have a question...

If the current holder of the Power of Attorney (POA) decides no longer to serve or can no longer serve, isn't there an option drafted in a well-constructed POA document allowing the POA to transfer to a person who is willing and able to serve?

It's been a while since I've served as a POA (documents drafted by an attorney) and I don't recall w/o looking back through the paperwork.

Barbara kate repa answered...

You raise a good point, The Caregiver's Voice. Those who make powers of attorney have the option of naming an alternate to serve as agent should the primary agent be unable or unwilling to serve. In such situations, if the primary agent voluntarily steps down, the back-up can be empowered as agent; the transfer usually involves filling out a simple form or two with the local probate or superior court.

In reality, most people--the estimate is 80%--do not name a back-up to serve for various reasons: They don't know someone they trust to do the job. They don't want to ruffle feathers by setting up a "first choice" v. "second choice" designation. They're completing the document in a hurry--often while facing a medical emergency--an can't take the time an effort to think through who may be a good back-up.

I'd assumed--maybe wrongly--that Rick did not appear as secondary agent on his mom's power of attorney, in which case, a guardianship may be the only route available.

Sharond answered...

According to my lawyer in NJ, it cannot be transferred. A couple of years after I became POA for my brother, I had a bad accident and that started me thinking that maybe someone else should be listed as POA if I died. The lawyer said that since my brother's Alzheimer's had progressed beyond the stage of his ability to appoint a secondary person, it was not possible. There were no options in the POA for transfer. So now I wonder what will happen to him if I die first.

Plumber's daughter answered...

Dear SharonD:

First of all, kudos to you for looking out for your brother with Alzheimer's--not an easy task. My father has Alzheimer's and my Mother is his primary caregiver.

I understand your worry, should you die before your brother. I would suggest identifying the family members and/or friends who love him as you do, and would have his best interests in mind. I would begin to have that dialogue with those individuals now, so if something did happen to you, that person could apply for an emergency guardianship, so there would be no lapse in his oversight and care. By planning ahead, you will reduce your anxiety around his future and put your mind at ease.

That said, let's hope you are around for many, many years and this won't even be an issue! Best wishes to you, Becky

Sharond answered...

Becky, Thank you so much for that idea. Unfortunately it will have to be my husband or daughter. You see, as soon as he was diagnosed, his wife divorced him and poisoned his 3 grown kids against him. They don't want anything to do with him and never ask me about him. I find that just unbelievable. So he asked me at the time (2006) by default to be his POA. Since then, I have had to make many major decisions. I never thought I would be my brother's keeper. He is 4 years older than me and he is really my half-brother (same Mom, different Dads). Sharon

Tomh answered...

Hello. I live in Illinois and am the youngest of four children, three still alive; my mother passed away years ago. My father is in end stage alz/dementia with other complications, and is also cared for at his home with hospice assistance. I have always helped dad out with his money and bills (10 years), and continue to do so as his "agent" (P.O.A. for property). The responsibilities for my father's health care, when needed, were legally to be carried out by my sister, who is eleven years older than I. It became to do difficult for her, and my older brother did not take on those responsibilities, so early this year, I became dad's "agent" (P.O.A. for Health Care). My brother, sister and I all get along and live within 5-25 miles of dad. We also have a 24 X 7 live in caregiver at dad's house since we all are employed full-time, have families and must work for income. Sadly, physical abilities of our own limit us to provide proper care all by ourselves. I am thankful Dad included successor "agents" in both P.O.A.'s and more thankful I can help him. He is the kindest man in the world, always helped everyone he knew and is my hero. I am 53 years old.