durable power of attorney and living will
I have been taking care of my mother CA since late 2005. I pay her bills and groceries online -with her ok, do her income and real estate taxes and have spent a lot of money in good will. The POA said my bro and I could act separately. He was annoyed telling her I could steal from her since I already had access to $. I can prove this false. Well, the POA''disappeared'' and I told my brother w needed a new one. He took mom to a lawyer in 2008 (fall) and this is what ensued: 1. A new POA where ''we must work together'' (he lives in Atlanta and I in SF); 2. A Living Will w/o a separate healthcare proxey that states we must both make joint decisions of her health 3. The original will he has, and I am the executor. There is no trust. The problem is now we have to cosign, we argue constantly (I do all the work. I came to visit, found a disaster, put her in hospital, and have been here in NY for 7 weeks.). The POA is not usuable, and per my lawyer, the living will is invalid: we are joint agents (need 1 in NY). She likely lacks capacity to change her docs. Should I file for sole guardianship? The stress of arguing is killing me; he threatens everyone; there was also
no attorney/client priveledge when the docs were done.
2 Answers from Attorneys
Re: durable power of attorney and living will
I am assuming your mother is in NY now. Yes, you may want to commence a guardianship proceeding, but I don't know why your brother wouldn't fight to be the guardian. Lots to discuss. Call me if you want to discuss in detail.
Re: durable power of attorney and living will
Yes this is a horrible situation. Unfortunately I think you will have a very difficult time obtaining guardianship specifically because mom signed a Power of Attorney under the supervision of an attorney wherein she specifically said that both of you are to act together. Perhaps you should consider resigning and putting the whole burden on your brother? I don't really know; we should talk this out a bit.
Rick Bryan
New York, NY
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