Mother knows her birthdate, children, the year, who is president, knows she does not want to be without me by her side. She knows the extent of her estate, where her money is kept, the approximate value. We were in a bad position up until now. Brother has made major life decisions for Mother when he is not the sole Trust of her Trust and he is not Power of Attorney of her Health Care. She is Trustee unless she is incompetent and then he and I are co-trustees. He has not recognized me as a co-trustee of the Trust until now. I am Mother's sole POA of Health Care. He has pretended and taken liberties as though he is sole Trustee of her Trust and when he, a cousin and a rogue facility outsted me and tried to take over her Health Care, she almost died. We weathered the storm and my son and I got her out of there to a very loving facility where I have been staying with her. It has been a year. Mother's physical health and mind have greatly recovered in this last year with me at her side. Confident, Mother and I went to an Elder Attorney. He asked Mother several questions for which she knew the answers. She didn't know the answer to "Do you know if you are the Trustee of the Trust?" She didn't know what it is to be a Trustee of her Trust. The Attorney helped us in some matters. We had a phone call with Brother. Brother now understands that he and I are co-trustees of her trust and that I am the Sole Power of Attorney of her Health Care. That part is good. It was expensive to sort that out. My question is: what is the bright line for competency for a 100 year old? The attorney asked her what she wanted and Mom said, she never wants to be without me. I think the Attorney would protect Mother and I if Brother tried to separate us in the future but I am not sure. What do I need to know to best protect her?
My parents scored very low. I’m expecting the guardianship proceeding to be pretty simple based on the findings of the exam.
Anyone can be wrong: it doesn't make him evil, and he hasn't continued to oppose you, has he?
You have just spent a considerable amount of your mother's money on legal advice concerning the question you are now posing here. Do you think we know better than your mother's attorney? Did you not understand the advice, or are you just not satisfied with it?
Competency, in any case, is not an on-off switch. Even in patients with established dementia, who think the president is Eisenhower and that you're their mother, they still have the right to have their preferences respected. They may, for example, know what colours to choose for their bedlinen. They know whether they like carrots or not. They know if they want a particular person to sit next to them and hold their hand - or more to the point, if they DON'T want a person to hold their hand, and well-meaning aides should take note of that.
So unless your mother is ever - God forbid - so far gone that she has no idea whether you're there or not, no one is going to keep you from her. And if she passes the point of knowing - God forbid - then it won't be her feelings you're worried about, it'll be yours, which is different. But even then... what conceivable reason could anyone, even your brother, have for barring you from her bedside?
If brother does that, I'm assuming that your mother would file a counter suit, asking that YOU be appointed her guardian. THAT would be very expensive.
What is brother trying to gain control of? I though he had already transferred most of mother's assets to himself?