My brother has POA for my mother and did not name a "backup" agent. He has now moved away and I would like to have the POA since my mother now resides near me. But my mother developed dementia since the POA was written- can it be transferred to me without her "consent"?
NO - it cannot be transferred to you without her consent. Your mother would have to execute a new POA and understand what the document means. If she has dementia - it's questionable if this can be done.
I am going to agree with the advice you have received. Your mother must have capacity to make you her agent under a power of attorney.
That having been said, your brother may be able continue as agent under the power of attorney even though he has moved. The reality is that, because of today's technology, most financial matters can be handled long-distance. He may need to travel periodically to deal with certain issues, but he can serve as an agent under a financial power of attorney without too much trouble.
If he is an agent on a healthcare power of attorney, the distance can be more problematic. He may not be easily accessible in the event of a medical emergency. For that reason, I prefer that the agents under healthcare powers of attorney live near to the mother or live where he is a short plane flight away.
If your brother is moving such that he cannot continue to serve as your mother's agent, then you and your brother should consider going to court and having the court appoint you as your mother's guardian and conservator. An attorney in your area should be able to assist you with this process.
Unless you came into my office, signed a contract and wrote me a check, I am not your attorney, and you are not my client. This is not intended as legal advice and should only be used for informational purposes only. You should never believe any information that you receive on the internet, especially information that is probably being provided in the late evening hours when I should be sleeping.
Your brother is the POA unless he resigns. At that point you will have to do a guardianship for mom if she lacks legal capacity (it sounds like that is the case). You can not just move the POA form one person to another. It is your mother's call and unfortunately she can not legally make it any longer.
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