Northwest Arkansas Democrat-Gazette
THE ELROD FIRM
Fayetteville 479.750.1101 Bentonville 479.268.5678 Fort Smith 479.434.3531
“Last month my mom’s doctor wrote a letter saying she is incompetent, but my sister had her sign a power of attorney last week. I told her that power of attorney isn’t good and she needs to stop using it. My sister disagrees—what should I do?”
Answer: There’s not a simple answer to this question. A doctor’s statement of incapacity does not automatically void the power of attorney that your mom signed. If she understood what she was doing at the moment she signed the document, it would be valid. The law presumes you have capacity until a judge says otherwise.
That being said, the document is also not necessarily valid. If your mom didn’t understand what she was doing, you might be able to have those documents set aside. But to accomplish that you would need to take your sister to court, argue that your mother did not have capacity, and ask the judge to find the documents invalid. You also need to consider, however, that at the end of the case, even if you win, you still don’t have authority to act for your mom.
Another option that may better meet your needs would be to pursue guardianship over your mom. You could contact the physician who previously said she was incompetent for evidence of the need for guardianship. If the judge then finds that your mom is incapacitated she would no longer be able to execute new documents.
Also, the judge in the guardianship hearing can set aside the power of attorney documents. To learn more, and better yet to set up a no charge strategy session to talk about this, visit our website at ElrodFirm.com.