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My husband is 74 and is in a memory care facility. I recently had a consultation with an elder law attorney to revise my will and to secure a deed of survivorship on my home. The attorney wants me to go the court and get guardianship. I don’t really want to do that. He signed the POA before he was found to be incompetent but was diagnosed with mild dementia a few weeks before. So the attorney says it could be challenged. My husband has two grown daughters. I have three grown children. We have no children together. We’ve been married 23 years. I’d rather not have to go through the guardianship process if it isn’t necessary. I’m considering seeing a different attorney but the last consultation cost $400 in advance.

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You would only need guardianship if one of the children challenges the POA, takes it to court and wins. Are any of the children likely to want to take on decision making while your husband is still alive?

Both guardianship and the POA only apply before death, they don't upset a will. The cost of a guardianship application would come out of you and your husband’s funds, and reduce what you and the five children could receive. Yes, I’d find a different attorney (or none at all – why did you see this one?).
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Reply to MargaretMcKen
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Yesterdayanurse 20 hours ago
So far, his daughters are not interested in taking on the responsibilities. They live in Florida. We live in Texas which is a community property state. So if I die first, the home goes to him, then his daughters. I want my home to go to my kids since he did not designate any of the investment accounts to go to my kids. That’s why I saw the attorney but I’m going to see a different one.
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What’s your relationship like with your husband’s daughters? Are they involved in his life and care? How do you gauge their likelihood of challenging your decisions made on behalf of your husband? Your answer to needing guardianship lies with these answers
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Reply to Daughterof1930
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Yesterdayanurse 20 hours ago
I have a pretty good relationship with them but didn’t raise them. They live in Florida. We live in Texas so they don’t see him very often. So far, they have not questioned any of my decisions and are happy to let me handle things. I don’t think they have much to challenge as my husband set them up pretty good.
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Questions worth considering before deciding:

Has any bank, facility, or institution refused the POA?
Are either of his daughters likely to challenge your decisions later?
Was the POA signed with witnesses/notary and apparently competently?
Did the signing attorney document his capacity?
Are you planning major asset transfers or Medicaid planning?

When you both went to create his PoA, did the elder law attorney interview him privately to assess his capacity and make sure he wasn't being coerced? If so (and it's the same attorney) then I'm not sure why he isn't confident about the PoA being challenge-proof. That being said... money (or the anticipation of an inheritance) can change people and a power struggle can ensue.

If the PoA was created from online documents (like I've done it through LegalZoom.com) then this would be very challengeable by his daughters since there was no pre-creation interview for capacity and the diagnosis came suspiciously close after the PoA was created.

One thing to remember is that if you are close in age to your husband and you become his guardian and then *you* develop dementia or some incapacity that means you can no longer take care of him or his affairs... ask the attorney what happens in this case. I don't know the answer or know of any examples of this.

I personally see why your attorney suggested guardianship but you need to make the decision fully informed of all possibilities and cover all the bases: find out what happens if his guardian can no longer carry out their responsibilities (which will also be financial responsibility) and courts are not happy about family guardians resigning and may not allow it. This may vary by state.

Did he name a second back-up PoA in his document?

So, you got married to each other when you were in your early 50s and your kids were presumably 18-ish or so and you maybe didn't raise his daughters much. Do you have a good relationship with them right now?

Families that are blended later in life can develop strained dynamics once their parents become elderly is there isn't a solid relationship with their step parent, and especially if there hasn't been good communication about health issues like dementia.

I think if you have a very good relationship with both his daughters, then maybe you can get away without a guardianship. It's a risk that, if you lose, can have some pretty severe consequences for you in your senior years.

Hopefully one or more of your daughters is your DPoA right now.
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Like said, I would not worry about getting guardianship unless your POA is challenged. Its very expensive. If your POA was written up by a lawyer, he should have been able to determine that husband understood what he was signing.

And as said, your POA stops at death. The Executor takes over when they go to probate which can't be done in my State till 9 or 10 days after death. Any contesting his children may do is done during probate.
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Reply to JoAnn29
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I printed the POA forms myself. We went to the bank where the bank officers notarized and witnessed my husband’s signature. The day before, we saw his primary care dr who documented “Parkinson’s with mild dementia”. I think this is why the attorney questioned it.
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Geaton777 19 hours ago
I think if you wait to see "if" the PoA gets challenged it might be too late to pursue guardianship. You need to ask the attorney what would happen if you were only the PoA and then it got challenged, then what would be the odds of winning and would it cost more money? Also, judges hate when there's a family power struggle and my end up assigning a 3rd party guardian to your husband.
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I hope the second lawyer can help you. In my state getting guardianship is a pretty quick process and not that expensive. However, the hoops to jump through have gotten worse over the years. There is a lot more paperwork and expectations for the guardian. I started the process for mom, but per our law I would have had to bring her to the court and she would have her own representative. Mom is mentally ill and a pill, so that would not have went well. I opted to just stick with POA. My half siblings are not mom's and no one else seems to be interested in questioning my decisions. There is nothing to fight over financially at any rate. The family farm is a burden, not a real asset.
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Reply to JustAnon
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Michael Holland in Houston is an excellent elder care attorney. His first consult is free.
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Reply to Lovemom1941
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My personal opinion (developed after speaking to multiple doctors, lawyers, etc) is that you can get a POA still but not a DIY. You’ll need one done by an attorney who can determine whether your husband understands what he is signing. I’ve been told they don’t have to remember but they have to know what they are signing and understand what it does. They will likely ask you to leave the room so they can determine that you are not exercising undue influence. That way, if it is challenged, you will have an attorney who can testify to what they did as far as due diligence.
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