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How can I transfer power of attorney from my brother to make caretaking decisions?

8 answers | Last updated: Dec 15, 2014
carrottopper asked...

My brother has power of attorney over our mother, who is in a nursing home and has dementia. The nursing home has had problems getting in touch with him to make decisions for her. He is unwilling to make contact with me about her welfare. How can I take over making decisions for her care, or transfer power of attorney, if he will not work with me on this or talk to me?


Caring.com User - Barbara Kate Repa
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Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in...
93% helpful
Barbara Kate Repa answered...

If your brother holds a valid power of attorney, then he is the one legally responsible for making the decisions--and the nursing home personnel will be required to do his See also:
Can a power of attorney be revised after a dementia diagnosis?

Is there any way you get to the bottom of why your brother seems unwilling or unable to communicate with both the folks at the nursing home and with you? Try approaching him in a spirit of cooperation--emphasizing that you both want what's best for your mother and that you are willing to help in whatever way you can.

Perhaps he needs a dedicated cell phone so that he can be reached more easily. He may also be willing to give you brief regular updates by phone or email if you emphasize how important it is to you. Or perhaps he feels busy with work and family matters, or is finding out that he is not emotionally equipped to take on the job of attorney-in-fact for your mother--and would actually be relieved to have someone lighten the burden.

You might contact the ombudsperson at the nursing home and present your concerns; he or she may have dealt directly with your brother and may have the best idea of what the sticking points have been in the past.

If this informal approach doesn't work, you may want to consider going to court to have your brother removed as the attorney-in-fact. This is a rather drastic step, and would require that you have strong evidence that your brother was not acting competently and diligently. The person named to act as successor would then take over if your mother named one in the original power of attorney document. If no successor was named, you would need to request that a conservator be named to make financial and health care decisions for your mother. You would most likely need to hire an attorney for help to accomplish these legal tactics.


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71% helpful
ladynew answered...

If the brother is responsible for making the decisions and doesn't do it then you need to petition the coursts for guardianship and conservatorship power of attorney is not enough .


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/people/78316 answered...

Been there. The Nursing Home repeatedly had problems with my brother not doing what needed done for Mom. I live 875 miles away. I ended up going to court for guardianship/conservatorship. Yes, my brother was upset. Would I do it again? Easy...yes. I was temporary guardian/conservator for about a month and then Mom passed away several weeks after my being officially appointed. Now I'm being appointed representative of the estate. Big job living so far away but somebody has to do it. I don't think my brother intentionally set out to do wrong by Mom. I think he got overwhelmed and needed help but wouldn't ask. And he wasn't on good terms with the staff at the Nursing Home. It's important to communicate with them. After all, they are the ones looking after your loved one.


56% helpful
bill3760 answered...

If he is not acting in the best interest of your parent; confront him and nail him to the wall. Tell him he either relinquishes POA or you will report him to the Department of Health and Senior Services, for Elder neglect which will ultimately end him up in court and possibly jail time. Further have your attorney review this statement and the facts an draft a letter to him ordering immediate cease and desist or you will pursue legal action in a court of law.


60% helpful
Howard3 answered...

I would ask the nursing home to document all of their attempts to reach him and his lack of response, and also keep a log of my own attempts. You could use this documentation in court.


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Jane F answered...

I agree if the brother who has power of attorney is not acting in the best interests of the mother, he should be removed as such. I do not know law, but I was wondering if anyone knows if it is true that DPOA isn't doing what is in best interest, can they really be held criminally liable? In the case of mother inlaw who falls a lot, hits cars and fences while driving,has delusions and calls police and sends letters to them accusing neighbors (and family members) of stealing, is diabetic but refuses to take proper care of herself for it because she says doctor is in a conspiracy, and she has been scammed by fake "doctors" who sell her cancer cures and other herbs, causing financial problems. Would this possibly be considered failure to act in her behalf by DPOA or no? I worry all the time about her driving and the potential harm to her or others, but she has never been made to go be tested at DMV for safety, as he refuses to "upset her".


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livingwithme answered...

Who is to say what is "in the best interest?" No answer is black and white. Elders opinions often differ from what their self-proclaimed wiser adult children think. Their rights should be protected for as long as possible. Unless she is actually incompetent by legal standards, you should back off. First, elders deserve respect and dignity, even if you don't agree with what they are doing. Second, this is your husband's mother, not yours. There is only ONE thing here that is really your business; public safety. You don't need to be the DPOA to call the DMV yourself to find out what steps need to be taken to get your mother-in-law's license taken away, if you think it is necessary. Report her and let the DMV take the necessary action. You could also call her doctor to have him send a letter to the DMV. But perhaps your husband and his brother don't want her to lose her license because they will be responsible for driving her everywhere she needs to go. What plans do you have for when that happens? And unless her financial problems actually cause YOU financial problems, it is not your business what she buys, or how she spends her money. We all make decisions that don't make sense to other people. But after a certain age, when you make a decision that doesn't make sense to a younger person, they say you are senile or incompetent. Watch out. We are all getting older. So are you sure you know what you are talking about? Courts decide that even elders have the right to make "bad" decisions. All this talk about changing DPOA's (your brother-in-law was chosen by your mother-in-law) - is it really about her best interest, what she wants or is it more about money or who has control?