How do I obtain durable power of attorney for my father in NJ?

My father's been a permanent resident in a nursing home for 2.5 yrs, has mild dementia along with a number of other health issues and can no longer sign his name nor make competent decisions. He's been on Medicaid since admission into the nursing home however, my mother died recently and now his house has to be sold in order to pay for the reverse mortgage previously taken out as well as to retroactively pay Medicaid back for his care. I have a brother who I recently found out has been signing my father's name on his bank account checks for his own personal expenses and this needs to stop. I have primary medical POA for him, but don't know if that is enough. I would greatly appreciate any guidance as to what legally needs to be done in order to take care of my dad. Thank you in advance!

Clifton, NJ -

Attorney Answers (2)

Christopher J. Roman

Christopher J. Roman

Estate Planning Attorney - Denville, NJ
Answered

You should speak with an attorney about whether your father has capacity to sign a POA. In general, if a person does not have capacity, then the next option be for you to begin a guardianship proceeding. That involves making a motion to the court to have the court declare your father incapacitated. If he is incapacitated, the court would also appoint a guardian to manage his affairs. You could be appointed. However, your brother will be notified that you brought the action. He could apply to be appointed guardian as well. The ultimate decision would be with the court. An attorney would be able to help you through this process.

Christopher J. Roman, Esq.
http://www.einhornharris.com/attorneys/christop...

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Eliz C A Johnson

Eliz C A Johnson

Estate Planning Attorney - Danville, CA
Answered

You may be past the Power of Attorney point if he cannot make competent decisions. You may talk with the doctor to see if he has lucid times of day but it seems like you need to set up a guardianship and get the checkbook from the brother. Find an attorney in NJ to start the guardianship proceedings. You will likely have to give notice to your brother and he may object but that will be where you point out, and hopefully have proof of, the fact he is stealing dad's money. You should talk to an attorney who is versed in probate and elder law issues. Best of luck to you.

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