My sister has been taking advantage of our father's finances. I was appointed durable power of attorney in 2006 before he got dementia. She recently had the power of attorney papers redone which he has no knowledge of. She has a spending problem. How can I protect him?
2 Answers from Attorneys
Generally speaking the law allows people to specify who they want to handle their finances and their medical care. Thus the latest power(s) of attorney may be valid unless you can establish that your father was incompetent when he signed. Some powers of attorney become invalid once someone is disabled, some continue.
While the disabled persons' own wishes expressed in a power of attorney should control, the law recognizes the need to protect a person and their property and sometimes court intervention is needed. Guardianship of a disabled adult can be sought through the courts. Maryland recognizes two different kinds of guardianship - a Guardian of the Person handles medical matters and a Guardian of the Property handles financial matters. Once a guardian is appointed, only that person can make decisions.
Your options in a particular case depend heavily on the specific facts, including your father's diagnosis, the language of the documents, whether resources have been misspent and so forth. If a family member takes advantage of an elderly relative you may be able to establish breach of a constructive trust and force repayment. Depending on the facts, adult protective services may also come into play.
I suggest that you consult with an attorney to describe the specifics of this situation and to discuss possible options.
A PoA that was effected when he had capacity will apply. The latest one will be effective. If he is incapacitated now then you may be able to establish guardianship. Contact me to discuss.
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