Need Legal Advice - state of FL

director56

Hi, I am new to this forum and am seeking advice that I am sure has been discussed before. My mother is 87 and I have just moved her into my home. She has Dimentia for about 3 years now. It is getting worse lately, but she thinks she is the same person as 10 years ago.

 I need to get ready for the day when I may have to make decisions that she will not agree with such as putting her in a care facility or selling her home. 

I have reached out to 3 attorneys, but have not heard back yet. I'd prefer to do as much as I can on my own, but I will for sure get an attorney also. I have the following questions: 

1. She signed a Financial DPOA that will activate when her attending physician documents that she is "unable to properly handle her financial affairs". 

Can I just get her Primary doctor or Nuero to create this document and then the DPOA is valid and enforceable to use?

2. What other legal documents should I be looking to have? 

3. What alternatives are their for guardianship? I can probably still get her to sign documents and agree to the terms. 

Other background: my father is no longer alive and I have one brother. He will not challenge me being named as guardian or whatever needs to be done. My mother has very few assets and there will be no other family members looking to get involved. 

Thanks in advance!

Stu

towhee

Hi, welcome to the forum. Some caveats- I am not a lawyer, I do not live in Florida, so I am giving only general advice.

1- You need a consultation with a lawyer that has a significant amount of their practice in elder law, usually people here recommend a CELA (nelf.org), bear in mind that qualified often means expensive, so be careful. If you think your mom might need to go into assisted living or a nursing home in the next 5 years it is unwise to transfer assets out of her name. If she is paying you for helping her you need a written contract setting out rate of pay etc. approved by a lawyer. If she is paying you anything for expenses or rent it needs to be in writing. Don't comingle your and your mothers funds. If your mothers assets aren't large it is very likely she will need Medicaid one day and you don't want to do anything that would cause problems with her getting it. Your lawyer might mention a Miller Trust, this helps when her income is too high for Medicaid.

2-Doctors differ as to when they will write a letter of  incompetence to handle financial affairs. Some want to see significant impairment, and they might not be seeing what you are seeing.

3-I understand that there is a waiting list for Medicaid for assisted living in Florida. It would be good to get on it, I understand that you can still have significant resources and still get on the waiting list. 

4-You need a Health Care Power of Attorney unless things are very different in Florida. In most states if you have a HCPOA and a DPOA or springing POA (like you have) you do not need guardianship to place. Advice on the boards is that guardianship is expensive and a hassle.

5-You need a backup plan in case something happens to you. Your brother (or someone else) needs to be a successor on that POA and HCPOA, and your mother (or you once you become HCPOA) needs to give your brother a HIPPA release. It would be good if you keep whoever your backup is informed of you mothers condition, it is not fun to be sandbagged. Try to think about what might happen if you were in a car accident.

If possible you need to get your mothers input on how far she wants to go with medical care. If you become HCPOA you can fill out Living Will, DNR forms etc., but you will feel better if you have some idea of her wishes. Your doctors office might have these forms.

See that lawyer,

Best Wishes

star26

Yes, your Financial DPOA will be valid and ready to use once you have the doctor's letter from her PCP or neurologist. You will submit copies of both to whomever you are using the POA with. Keep in mind some financial institutions have their own POA requirements and they may or may not accept yours. 

In addition to Healthcare POA (and ideally, advance directives) it's also helpful to have a HIPAA release form you can use with all doctors and hospitals rather than your Mom having to sign individual authorization forms at each location (which may not always be possible). 

Most people don't need to pursue guardianship as long as they have a decent and properly executed POA (the longer the better - spelling out all that you can use it for). 

MN Chickadee

Many elder law attorneys are skilled at getting people to sign the needed paperwork. Keep looking and calling, you definitely need an attorney asap. Once a medical POA is signed, a letter from her doctor should be enough. Guardianship is usually only necessary when the POA documents don't exist. The attorney is worth it. They can help make sure everything is air tight to prevent future headaches and help with financial planning for care.