What do I need to do to prove my father incompetent?

Q: He has moderate to severe Alzheimer’s. I have durable POA.He is becoming more paranoid. He lives with me and my family and I currently care for him full time. He speaks more frequently about taking out all his 401k money so he can see it and use it on a moment’s notice, sell his house and move out of ours. He is not capable of cooking, taking his meds, or transporting himself very well (as he has severe arthritis in his knee and uses a power chair almost exclusively. He has no driver’s license and continues to insist he can drive and will not relinquish his car. He is only fully lucid about 10% of the time.

A: The General Durable Power of Attorney is an extremely effective and cost efficient document to assist another person with their affairs. However, when that person becomes out of control, resistant and puts themselves or their assets at risk, you may need to file for a guardianship. This will involve obtaining an opinion from his treating physician that your father is unable to manage his own affairs. You really need to sit down with an attorney that does guardianships and review all of the information.

Family members not contributing to mother’s caretaking

Q: Is there any way to protect yourself from family who is not contributing financially or giving relief to family member who is caregiver? Matriarch suffered a stroke. Youngest child (Caregiver), who lives with her and is providing most care, day and night. He is 54. Sister has deed on house. She is providing him with some financing, but, not much physical relief. Older brother will not pitch in unless his name is on the deed, but feels the right to come over whenever he wants to give orders. Caregiver is responsible for taking care of her at night, and on days when he is not working. But Caregiver must pay an individual to come in and sit with her while he goes to work. He is exhausted and almost at the end of his rope. Can anything be done to force the family to assist in a more responsible manner?


A: No family member is legally obligated to care for another. Some states do have filial responsibility statutes which make certain next of kin financially responsible for other family members who are indigent. PA does. This doesn’t sound like your concern, at least at this point. If the caretaker is financially burdened by his role, he may want to discuss filing with the court to be appointed the Matriarch’s guardian. If so appointed, he could earn a fee for his services and/or hire service providers and caretakers to ease the burden. All of these expenses would be paid from the Matriarch’s funds. Of course, in these situations, the guardian has to keep a running account of all of the money he or she spends as the court now has jurisdiction. Often in these situations, one family member bears the burden more than others. If the situation cannot be worked out fairly in an informal manner, a guardianship may be the answer. In addition, there are other issues you need to be aware of such as Medicaid. You need to consult with an attorney and provide him or her with all of the facts.

If nursing home gets guardianship for mom will I have to move out of the house?

Q: Nursing home is applying for guardianship of my elderly mom. If they win will I have to move out of the house that both mom and I own as joint tenants with rights of survivorship. Will they force me to move out to sell the house to pay nursing home bill?

A: You need to contact an elder law attorney asap. If you feel you can handle being Guardian, you should file through an attorney. An attorney can advise you on this and how to protect that home from a potential Medicaid claim which could arise down the road. If you have been living in the home as mom’s caretaker you may be able to keep it for yourself.

Do we need a lawyer? My husband has dementia.

Q: My ex husband has dementia, cancer and emphysema. He is in a nursing home, temporarily. My two daughters who will oversee him are both disabled and really need advice on what to do. Do they need a lawyer? They are overwhelmed and don’t know what to do. Thank you.

A: You should speak with an elder law estate attorney immediately. You may need to find another POA or Guardianship Petition, other than your children. If you cannot find such person or another family member or trusted friend, the court can appoint an agency to do this. You really need to discuss these options and other concerns, such as Medicaid, with an experienced estate attorney.


Father has dementia but is refusing our help


Q: My 82 yr old father (A veteran) needs an aide due to dementia but is challenging help, what are our legal rights? My father is a U.S. Air Force Veteran , widowed 19 years ago. He lives in West Newton now. If he challenges our help, what legal rights does he/do I have beyond having him declared incompetent. My biggest concern is his well being (he is forgetting to eat). I am currently on his accounts but have concerns with costs. What are my options as he is still somewhat aware and wants to remain independent even though we (my 2 siblings) feel that might not be possible. (Jefferson Hills, PA)

A: If he is resisting you I assume you do not have a general durable power of attorney in place. Until he is declared to be incapable of handling his own affairs in a guardianship proceeding, he is free to do as he wishes. This is a difficult situation for both of you to be in. I would not give up on communication. Perhaps he feels threatened and a gentler approach of opening up a dialog with him is advisable. If Westmoreland County has adult services in the area, perhaps they can do a wellness visit or refer him to services to come into the home. The more you talk to him, and others, the more you will learn and the closer you will come to dealing with the problem appropriately. You should consult with an attorney as to what is involved in filing to be his Guardian.

Is it illegal to make changes to a bank account of a person with Dementia/Alzheimer’s?

Q: How does victim proceed? For years, a lady had her only living relative listed as ITF (beneficiary) on her bank account. Now the lady has dementia. A distant friend filed for Conservatorship saying the lady isn’t mentally capable of managing her own finances, but withdrew the petition prior to the court date. Months later, the friend took the lady to the bank and removed the relative’s name from the account listing herself as ITF (sole beneficiary). Recently without the lady’s knowledge, the friend withdrew over $20,000 from the lady’s account, getting several cashier’s checks, leaving no monies to pay all of the lady’s monthly expenses. Per bank manager, friend had POA, funds shouldn’t have left bank and believes possible friend knows teller. Even if lady signed POA, she wasn’t mentally capable. Is any of this legal?

A:  If your information is accurate, it sounds like she is being taken advantage of and her money is being stolen. This is possibly a case of financial exploitation. Call the Department of Aging to notify them. They may schedule a home visit to assess the situation. A person who has “standing”, which takes too long to explain, is someone with an interest. A person with an interest, which is certainly a relative, can take action. It is possible this elderly person is being influenced or has signed a POA over to this “distant friend”. The interested person who comes forward can file a petition to freeze the accounts and for an accounting of all POA funds. Unfortunately, this involves hiring a lawyer, but may be the most expedient remedy. The lawyer can also advise if a guardianship is needed and can get it started.

Brother with DPOA will not tell me where my Mother is.

Q: Brother and Mother live in Allegheny County, and I am in Wheeling. Mother signed a General Durable Power of Attorney over to my brother. Mother was in an Independent Living Facility, but after a fall, was admitted to in-patient rehab facility. She is no longer there and brother will not tell me where she is. He said she does not want to see me, which is untrue. I discovered his daughter has been added to the title on my mother’s house, for the consideration sum of $10. I believe she is being exploited and coerced. We requested a welfare check, but with being out of state, Pittsburgh PD required contact from our local police, and a missing persons report was filed. Unfortunately, my brother was there when the police arrived and my Mother could not speak freely. How can I find out where she is?

A: If you believe mother is being financially exploited by your brother and niece, as a first step, you can call the county Department of Aging and see if they will do a wellness visit to assess the situation.  If you truly believe you are better suited as a caretaker of your mother, you can hire an Allegheny County attorney to file for a Guardianship, which will result in the court making a determination as to who, between you and your brother, would be your mother’s guardian. However, if the Department of Aging cannot help the situation, the Guardianship may be your only option as you will probably keep running into roadblocks with your brother.  I would also consult with an Allegheny County attorney.

Sister has a POA over parents and won’t give me information

Q: My sister is POA for my elderly parents. She is not sharing any information with me. I am on the wills, etc. What are my rights to receive information. I live her in Pittsburgh and they all live in Erie. Parents put her as POA, because she is the oldest and they thought/hoped we would all get along. This is not the case. My sister and I are estranged. She did not even tell me when my mother fell at the facility in Oct. Do I have any rights to view finances for my parents as I am not sure everything is good with their finances. I have asked repeatedly for information, even in the past when we were speaking, I sent a certified letter to her 3 weeks ago asking for financial information and to see if she sold their car and if she filed for the VA benefits they are entitled to. There has been no response.

A:  Just being an heir or one of the children does not give you rights to receive the information you want. In fact, your sister may have a duty to keep your parents’ information confidential. If you are concerned that she is abusing or financially exploiting your parents you could petition the court to have her file an accounting of all of the funds she is managing as Agent under the POA. You could also have yourself of someone else appointed as guardian. If you retain an attorney, he or she can advise you which one of these measures might work best. Just having the attorney involved, may cause your sister to give you the information you need and to be more cooperative. It could also make matters worse and result in more family drama. Communication is the key. I would keep trying to communicate with your sister and only use a lawyer and legal system as a last resort.

Can I just take my dad out of the home?

Q: My Dad was put in a home by someone who is no relation and she signed papers so I have no rights. Can’t I just take him home with me? I am his only daughter (both at a biological & legal stand point) and he has supposedly been diagnosed with dementia. I have no criminal background, etc. There is no reason I shouldn’t be able to take my Dad home to be in my care.THE PAPERS SHE SIGNED WERE JUST FOR ADMITTING HIM UNDER THE FACULTY’S CARE. I BELIEVE. NO GUARDIANSHIP EXISTS.

A: Much more information is needed to answer this. For example, on what authority did the “someone” act upon in putting him in a “home”? Did he or she have a Power of Attorney from your dad? The only person who can sign him your dad out is your dad or the person who has legal authority over him. If suddenly taking him out of the home would be detrimental to his health, you may be opposed, unless you have the ability to continue the type of care that he needs. The facility may file for a guardianship. You would have to demonstrate that you are responsible and have an appropriate home. A home assessment would have to be done. If you walk into the nursing home demanding to leave with dad, they will likely call the Department of Aging. You may have to file for a guardianship. You should find a local elder law lawyer and have a talk.

Should I file a guardianship for my mom?


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.