Q: Do I need to file a guardianship if the Power of Attorney is not doing his job? Mother is in a nursing home and brother is her POA. Mother is unable to communicate except for head gestures. Doctors say she is able to leave facility. Brother refuses to take her out. Do we have to file a petition for Guardianship in order for me to be her guardian? Brother keeps throwing in our face that he is the power of attorney.

A: Filing for the guardianship is a more expensive route to go. A guardianship proceeding involves a doctor’s deposition fee, court reporter fees, filing fees, lawyer’s fees. It will involve a hearing before a judge to determine who should be the guardian. Your brother may contest. Your mother must be served with the petition and may be called as a witness. Courts normally favor the person who has the POA but this doesn’t mean you would not be awarded guardianship of her. You have set forth some valid considerations to replace him. You may want to consult with an elder law attorney before you start any disagreement with your brother. The easier thing to do would be to have mom sign a new Power of Attorney over to you, but I am assuming this is not possible. The new POA would have language which revokes the prior.