[MA] Can a lucid rehab patient deemed incompetent sign a valid durable power of attorney, and how is it notarized?

MA Legal (General)

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A Massachusetts durable PoA will let you handle her finances, decisions, and day-to-day matters while she is living. It does not give you authority over probate after she passes. A PoA always ends at death.

If she wants you involved after she is gone, she would need a will that names you as personal representative or a trust that puts you in charge.

Right now the focus is getting a valid durable PoA signed while she is lucid. You can do that in the rehab facility. You do not need to move her anywhere. A mobile notary or a staff notary can come to her room. Remote notarization works too as long as everyone is physically in Massachusetts during the video session. Bring an unrelated witness so you have support for her capacity in case the facility pushes back.

Requesting a neuropsychology eval helps build a record that she does have capacity during the day. That gives you more leverage if the facility challenges her ability to sign.

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My 50 year old 88 yr old friend is in a rehab after an L3 compression fracture and fall. The MD there without talking to me who is HC Proxy deemed her incompetent. She does “sundown” at night but is lucid during the day.

I spoke to a friend who is a Rehab MD and she said to go to the facility with another person who is not related to my friend to witness her signing a PoA. This MD said the burden of proof is shifted to the facility to prove they are right and we are wrong.

Is this document a Massachusetts Durable Power of Attorney? How do I get it notarized? Would I have to take her out to a bank? I am waiting for return call from my own estate planning attorney. I think she can do tele witnessing and notarizing as long as everyone is in state. Is all of this correct?

My Rehab MD friend said to request a complete neuropsychology eval to contest the facility MD's decision. I will pursue that with her insurance and the facility.

Lexi, Chatbot

I’m sorry to hear about your friend’s situation; it must be very challenging for you. Can you confirm if your friend has any existing legal documents, such as a previous Power of Attorney or advance directive?

None.

Lexi, Chatbot

Have you already discussed the possibility of obtaining a neuropsychological evaluation with her current healthcare team?

No. Just got the advice minutes ago.

Legal Eagle

I’ll be happy to help you out today. Please note that this discussion is for guidance only, does not constitute an Attorney-Client Relationship, and is only to help you understand the nature of your situation from a legal standpoint and discuss options. You must engage an attorney in your local jurisdiction if you wish to take any legal action through an attorney. In addition, there may be a small wait as I review your question to provide a detailed response.

Do you have any additional or clarifying information that will assist in my review?

No until you ask me questions.

I guess it would be good to know if I can get one of you to notarize the document if my friend decides to sign it in the nursing home. Do you have the capability of doing a tele session that would include notarizing, e.g. Thursday when I and another 50 year friend and another 40 year friend can witness. My friend is Japanese. I would try to get her Japanese social worker there also to witness.

Legal Eagle

Unfortunately not, this is a Q&A forum which is only for general information. We help customers understand the law and their legal options.

I had put in a call about this to my own estate planning attorney but she didn’t reply yet and I don’t know if I could get her to set a notarizing tele session by Thursday set up.
Is this a Durable Power of Attorney that would even let me handle her probate when she passes?

Legal Eagle

If she wants you involved after she is gone, she would need a will that names you as personal representative or a trust that puts you in charge.

Requesting a neuropsychology eval helps build a record that she does have capacity during the day. That gives you more leverage if the facility challenges her ability to sign.

Ok. That is the same my Rehab MD friend said. Thank you!

Legal Eagle

You are very welcome!

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