My mother has dementia and has been living in a state with not great healthcare for the last 13 years. For the last six years, she’s been in a memory care facility. My sister lives in the same state and has primary medical and enduring/financial POA over her in that state. I am secondary on both. In the last few years, my mother’s condition has worsened, we don’t think the care she’s currently getting is adequate, and we’d like to move her to my state where the health care is better, with the idea that I would become the primary on the medical POA. My question is, can my sister just resign as primary (and hopefully become secondary) and can I then step in as primary using the other state’s POA in my state? Can my sister move and still retain her status as primary on the enduring/financial POA? (She’s not said she wants to, but I would hate to think of her being trapped)I’ve just discovered this forum and haven’t explored much. I also haven’t yet called the legal aide society, but will do do soon.
My parents lived several states away and had not updated their legal documents since the 80s so I insisted they do so around 2017. At that point, they named each other as POA, health care proxy, and executor, with me as second.
Then my dad was diagnosed with dementia in 2019. This meant that my mom’s will needed to be changed to remove him as her POA, health care proxy, and executor. I was told at that point that my dad could no longer alter or update his will because he was considered incapacitated.
They then moved to my state and town in 2022. My dad passed two years later, in 2024. There were no problems executing his estate even though it was all under the previous state. All the entities (Social Security, his pension plan, etc) accepted his will written in the original state and cooperated with me though I also had to get my mom to sign a lot of documents. He had everything passing to my mom which is straightforward. She was also the recipient listed on his retirement account, which is important.
I was then strongly urged to get my mom to update her will and POA and health care proxy at that point, both because he had passed but also because she was living in a new state. Yes, it was all a big hassle and did have costs associated but I’m glad we did it. I hope that’s the last time.
If your sister resigns as primary, as opposed to taking a break, which is allowed and can be handled by the attorney, and something happens to you, your mom will then have no POA. This is not something you want to be a potential situation.
A certified elder law attorney can guide you on the best process to accomplish your goal of moving mom and having the ability to legally advocate for her, without losing her back up POA. Once a POA resignation is effective, it CAN NOT be reinstated by anyone but your mom and she lacks that capacity.
Please, please do not have sister resign her ability to advocate for your mom. It is not necessary for you to do what you plan.
Unless your sister officially and legally resigns as the primary on your mothers POA again in a lawyers office, would you be able to take over as primary.
I would reconsider moving Mom. From time of diagnosis, my Mom lived 6 years. A big change for your Mom may hasten her decline. Then its transporting her there. Traditional Medicare will go with her but maybe not her supplimental or Medicare Advantage plans. You may have to get knew coverage.
This could be overwhelming for Mom and scary.
(1) Yes, your sister can resign as the agent on the health-care power of attorney. It probably would be a good idea for her to write a formal letter and submit it to whomever has copies of your mom's health-care power of attorney, e.g., physicians and the memory care facility.
(2) Your sister can retain status as primary agent on the financial power of attorney.
(3) A bigger issue might be finding a facility in your state to which your mom can move. This is what I'd focus on first, if you're not already doing so.