Legal Question in Health Care Law in New Jersey

POA for incapacitated mother

I live in Ohio. My father is caregiver for my incapacitated mother living at home in NJ. My parents have a will which I have not seen but believe to be mutual naming me as executor of their estate. If my father passes away before my mother, what happens to my mother in the time before I can get out to NJ? Does the state just take her to a nursing home of their choice? Should I try to convince my father to get a POA and if he does, can it be executed from out of state? Is there any other steps that I can take to alleviate a situation such as this? Also, what happens if my father becomes incapacitated, as well?

Asked on 10/13/04, 3:33 pm

1 Answer from Attorneys

Alan Albin Alan S. Albin, Attorney at Law
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Re: POA for incapacitated mother

You should encourage your father and mother to have a consultation with an attorney for the purposes of doing some comprehensive estate planning.(I can assist you with this, see below.) Perhaps they will be more inclined to do this if you offer to pay the attorney's fees.

If your parents do have mutual wills, naming you as executor, then clearly they should be willing to provide you with a copy of the will; or if not, they should certainly be willing to tell you whether or not they have named you as executor. Why haven't you discussed this with your father?

If your father passes away before your mother, then I assume your concern is about your mother's physical health and safety. Again, you need to discuss this issue with your father and mother: do they have a neighbor who can periodically check on them? Is there an alarm or similar service they can subscribe to in their area?

Regarding the amount of time it would take you to get from Ohio to New Jersey, this should take less than a day. The "state" will not immediately put her in a nursing home. If she needs immediate medical attention, she will probably be sent to a hospital.

Again, these issues need to be discussed cooperatively between you, your parents, any other siblings who may be interested, and an attorney/estate planner.

You really can't force your parents to do anything. You can take steps to persuade them that they need to do a lot more planning. It's up to your parents as to whether they wish to involve you in this process.

Regarding a POA for your mother, since she is "incapacitated," her competence might be questionable. Therefore, her ability to execute a valid POA at this point may be doubtful.

Have you spoken with her to try to find out what she wants to do about this?

I strongly recommend that you consult with an attorney immediately so that you can explore your legal rights, obligations, and options. If you wish to discuss retaining my services, contact me at:

alan@alanalbinlaw.com

(973)-605-8995

(*Licensed in New Jersey, Maryland, and Dist. of Columbia)

[Disclaimer: The above comments are not intended as nor should they be relied upon as "legal advice", which can only be obtained by personal consultation with a retained attorney; at which time the specific facts and circumstances of your case can be thoroughly evaluated. This reply is provided for general informational and educational purposes only, and does not create an attorney-client relationship with the responding attorney.]

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10/15/04, 10:25 am

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