Dear Michael: Recently my father entered a long-term care facility. When I contacted both the brokerage and the bank, both told me I would need a power of attorney to access and use these funds for his care. Unfortunately, my father has dementia and never set this up prior to his entry to the facility. I guess he never realized that even he, nor anyone looking after him, couldn’t access these accounts under these circumstances. What can we do now?

– Powerless To Help

Dear Powerless To Help: Not having power of attorney (POA) leaves you pretty helpless to help him.

The long answer to your question is this. A person who has a sufficiently bad cognitive disorder can no longer set up a power of attorney, nor change their wills, nor agree in principal to many things the rest of us take for granted. Attorneys likely won’t help you because they don’t want to spend time on something that can’t be done.

You’ll have to petition the court – usually a district court – to prove your father’s incompetence. The court may take a long time to hear your petition. In the meantime, you will need to do all the documentation as to why your father is incompetent and put this into the petition to the court.

Now that the court has finally set a date, and you think everything is over, the court is going to want to hear expert testimony from your father’s doctors, his care assistants, etc. Your attorney will need to ask them to appear in court – which they will for a fee – so they can give their testimony. This testimony will be the same as they told the lawyer in depositions earlier that went in with the petition to hear your case.

If it sounds like you are going to spend a lot of time, and likely your money as your father’s money is inaccessible, to prove his incompetence, you would be entirely correct.

You and your family had all better be on the same page when you make this petition because if another family member feels like they would be a better fit as power of attorney, then you have an entirely new set of circumstances to deal with. The court will have to decide which of you is the better person to represent your father. If you thought getting him proved incompetent was hard, wait until you and your family member joust in court over who’s the better person to take care of him.

Again, this goes back to your father’s level of incompetence. My aunt had Alzheimer’s and it started as bouts of forgetfulness. However, the doctors certified that she could make decisions if it were all explained to her and she understood the decision she was making at the time – including doing a power of attorney. In her case, she could make that decision when it was outlined to her.

As long as the doctor agreed that while the question was being presented that she could make that decision regardless of her ability to remember that decision gave the people trying to help her the ability to do so.

Perhaps your father’s doctor and you could come to a similar decision on this. A power of attorney is as good as it is until someone – anyone – questions whether or not you did the correct things for your father’s behalf.

And remember, if you do self-serving things with this POA, it can be contested, even if the doctor certified your father was capable of understanding, if only briefly.

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Michael Baron provides estate planning guidance at Great Plains Diversified Services in Bismarck, North Dakota. Email him at KeeptheFamilyFarm@gmail.com.

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Michael Baron provides estate planning guidance at Great Plains Diversified Services in Bismarck, North Dakota.