Question of the Day on "My mother has borderline dementia and is making bad financial choices based on an outside influence (ex-boyfriend) in her life. My brother and I are concerned. We have dual power of attorney for her, but wonder when we should step in. Any help on what steps to take would be appreciated."

Answer:  Assuming you have a valid financial or general power of attorney that complies with state law, you need to check the document.  When does the document say the power is effective?  Some are effective immediately upon signing it.  In that case, you can use the power right now.  She may, however, try to revoke it. 

Most powers of attorney, however, are considered “springing.”  That means the power of attorney is effective upon some triggering event, usually incapacity.  The document should say how incapacity will be determined.  For example, some say that the principal (the person who signed the power of attorney) must be determined to be incapacitated by two physicians.  If such a requirement is in the document, then you will need written statements from the physicians stating that she cannot manage her financial affairs.  Those statements should be kept with the power of attorney and made a part of it.

Remember that financial institutions may not accept the power of attorney.  Some will not accept a power that is a certain number of years old.  Others will look for certain clauses that may or may not me in your document.  And some financial institutions seem to give people a hard time just because.  It is very difficult to try to force a financial institution to accept a power of attorney.

If your power of attorney turns out to be ineffective for whatever reason, you may need to petition the court for a conservatorship.

Ronald Zack, Esq.
Tucson, Arizona

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