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- the family spends a lot of time and money to pursue guardianship through the courts
- the county pursues guardianship
I have read on this forum from those who have experience that when family pursues guardianship it can cost upwards of $10K. And then in court if the judge perceives family disagreement or infighting or power struggling the judge can then decide to award guardianship to the county anyway.
If the county gets guardianship they control all of your mom's medical decisions, what facility she goes into and her assets, including her home and any material things. When she passes the family (next of kin) will get a summary of how her assets where spent by the guardian. There is no guarantee that there will be ANYTHING leftover to "inherit" at that point. The guardian is not legally obligated to share any financial info with family while she is alive (and trust me, they won't tell you anything). You will be dropped from joint bank accounts. If they put her in a facility that is too far away they will try to accommodate family in that regard, but she probably won't be going into a "nice" facility -- probably a Medicaid one run by the county. This is how it went for my stepFIL when the county gained guardianship of him.
Dementia, loss of cognitive and judgment abilities, happens gradually. Your mom may make some very ill-advised and illogical spending decisions before she is so bad that APS needs to come in to take over. She will be very vulnerable to abuses by the financial predators of the world.
All you can do is explain to your mom about her choices of who she wants to make decisions for her when she can no longer make them herself: her family or a soul-less guardian? THere are people in the world who are just in denial about aging and dying. THere isn't much you can do about it except make the case to her and also by being an example of it yourselves, by creating PoAs and Living Wills yourselves and then asking your mom why she isn't doing it.
At the very least your mom should create a Living Will so that she can remain in control of her medical care decisions should she lose her capacity due to an accident or illness. Otherwise (and depending on her state's laws) it will default to next-of-kin (and if there are more than one adult child this is also a precursor to family strife if there's not agreement on treatment for her).
Do not fall into the trap of expecting any inheritance and operating from that center point -- it will only cause a giant rift between you and her and between individual siblings and family members.
In the end your mom is a fully grown adult making her own decisions (for now). All you can do is reason with her and present your case for making preparations for worst-case scenarios. I wish you all the best and no family strife.
The best thing this family could do for Mom this Christmas is to pay for her to have the services of a trust and estate attorney to set up durable POA, an Advance Medical Directive, a will, and a trust. The attorney will go over all the items with her, will explain that the POAs don't go into effect until she's incapable of handling her affairs, and will help her protect her assets while she's still alive.
She may just be overwhelmed by the immensity of it all, so help her by getting her to an attorney.
If incapacitated it will likely come through a medical issue. If your Mom is hospitalized the Social Services will contact next of kin and help with an application by phone to a judge of "emergency temporary guardianship". This can be made permanent guardianship with the court eventually. The guardian will then direct all legal, billing, financial, health issues while Mom cannot do so. If there is no hospitalization and Mom is in unsafe circumstances and still alone, a call to APS with help with these same matters.
I encouraged my MIL to get her affairs in order about 15 years ago. She did, but only b/c I think I terrified her that her 3 kids couldn't just split things 3 ways--there was nothing to state that's what she wanted.
Just found out (among with my many, many mis-steps with this woman) that she felt I was trying to manipulate her into leaving ME 1/3 of her estate. She did make the will, but I am not to receive ANYTHING. So, when DH receives his inheritance, somehow I am not to benefit from it.
People are so weird.
She has DH and his older brother as POA's and told him she lives in 'deathly fear' everyday that he and his brother will throw her in a ratty nursing home. DH said if she felt that way, to change her will to make sure her only daughter is in charge.
Who can sell the house etc should all be spelled out in the WILL.
If the WILL is not clear each state has rules as to how things go between immediate family members which you are. Google your state or consult an attorney.
The will comes after the death. The will will have an executor appointed. That person will gather in the estate, distribute any assets as the will dictates. Does you mother have health care wishes? Does she have Dementia? Is there a Health Care POA? An advanced directive? Has Mom told anyone who she wishes to be the executor on the will, and does that person know where the will is? All things to get answered now if you are able, and if not, the Hospital system will find the next of kin and will get someone assigned temporary guardianship if needed. Good luck. So sad and so much more difficult when these things aren't taken care of in a timely manner.
If she is incapacitated, then the "next of kin" gets to decide on the matters you mentioned. Talk to her doctor with all family members who could be considered "next of kin" to make the needed decisions. However, most financial institutions want a POA. If she can streamline all her bill paying to automatic online paying, that would help make sure bills are paid without the need of a financial POA. Just be aware that nothing can happen to her accounts until after her death..
Please check with a lawyer in her state to see if her will is "legal" in her state. It should have a designated executor who will liquidate and distribute her assets per whatever is outlined in the will.
I finally got Dad's attention when I had to use what is called a "therapeutic fib" by saying that the way their Will was written, that the State would get half of their assets. IT WORKED!! Dad had me set up an appointment with an Elder Law Attorney. Whew !! What a relief that was.
Later down the road, my Mom had passed and Dad decided it was time for him to move to senior living. And it was time to sell the house. I remember when I presented the financial Power of Attorney to the Title Company [in case my Dad didn't want to be at settlement], the Company was glad that the POA had the full address of my parent's house listed. That one sentence was soooo very important.
https://law.lis.virginia.gov/vacode/title64.2/chapter2/section64.2-403/
I admire someone with your mother's strength and tenacity. For the time being, I would think in terms of insuring (to the best of your ability) that the will is valid, and that whatever other actions she's taken are, to the best of her ability, actually benefitting her.
You might also gather data on the house and her finances just in case something does happen and you have to step up.
An example: if you don't have access to the house legal description and any potential encumbrances, ask the county recorder's office to help you get a legal description, then get copies of the deed to her home, any and all encumbrances, and or documents of records .
If there's a mortgage, you'll at least know who the mortgagee (lender) is. If the mortgagee has assigned the mortgage, that would be recorded as well. If anything happens that she can't make mortgage payments, you can contact the mortgagee, provide ID verifying you're her daughter, and get information on payments to ensure the mortgage doesn't go into default.
And you can ask if she needs any assistance or research that you could do? I think working with her at this point will yield more positive results than pursuing a course of action requiring delegation. She's just not ready to do that, unfortunately, but be prepared for that time to come.
I think that, given your father's death, she may feel the need to ensure herself of her ability to carry on w/o him. That's not surprising. And as an alternative to "what do I do now???" approach, of anxiety and possibly fear of being on her own, even though she has you and your brothers, she's attempting to structure her life to do that, be on her own and make her own decisions. Kudos to her for that confidence and initiative!
Another thought though is a DPOA that limits authority to specific issues, rather than something very broad in nature.
Sometimes something happens to an elder and it suddenly becomes "wake-up time", and the need for supportive documentation becomes critical very quickly. You might think in those terms, and plan various courses, i.e., how to get guardianship ( which I wouldn't recommend not only b/c of the cost but because you might not be the chosen guardian), storage sites for her financial information (lock box), etc.
In fact, you might get her a fireproof lock box and make a duplicate key before giving it to her. It's kind of sneaky, but it's a good way to provide access to data you need.
You might let her know that it would make things so much easier if she would add you own her Bank Acts as POD...your mom might not understand that a pod is payable upon death.only and you can't do anything with her money until she has died.
The Will will go to probate and after you'll just need her Death Certificate to get her money, sell house and car ect or whomever she leaves as Executrix of her Will
Medically, you could ask her about what sort of care she wants if she can't talk. Then have the appropriate forms ready - tell her if she doesn't put those wishes in writing on the form, the drs who know nothing about her would make decisions for her. You could also ask her about how her drs and bills would be paid if she couldn't talk and was recovering from a bad illness - and have the POA form handy to be signed. If mom still won't budge on these issues, you're pretty much stuck until such time she recovers from illness or passes away.
If your asset is structured properly by the Lawyer you can avail your county's resources like Aide waiver----than having to pay for guardianship, probate and more---
I heard its not cheap and very stressful... Pray that your mom will have more wisdom.
Hugs and prayer.