How can I obtain POA over my deceased father’s estate if my mother has early onset dementia and can’t make rational decisions?

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How can I obtain POA over my deceased father’s estate if my mother has early onset dementia and can’t make rational decisions?

My father passed away recently. My mother is still living yet she has good and bad days. When we try to set up an appointment to go get in my father’s safety deposit box or look into what his investments are, or anything for that matter, she’ll agree one day and bless us out the next. We think his will is in the safety deposit box and would clear up some questions. I understand if there is no Will, she would garner all rights to his estate, which is fine. However, one brother lives with her and has for years and seems to be trying to manipulate the situation. What can I do to stop all use of my father’s bank account, credit cards and such until we can get things straightened out?

Asked on October 13, 2017 under Estate Planning, Tennessee

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You can't get a POA if your mother is not mentally competent: only a mentally competent person can grant a power of attorney, and one granted when your mother had early onset dementia would be subject to challenge (even assuming she would in fact give you one). You may need to have her officially declared incompetent by a court (based on  medical evidence of incompetence, such as testimony from her doctor[s]) and have someone appointed her legal guardian to make decisions, etc. for her (the guardian will have all the power a POA could give and then some). You can ask that the guardian be yourself and may have to present evidence or testimony of some of your brother's supposed manipulations, use of her money, etc. for his own benefit, and abuses of the situation to show it should not be him. If you wish to explore this option, consult with an elder law attorney.


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