Dear Mr. Premack: My mother is starting to need help with her shopping, balancing her checkbook and other daily tasks. She is very comfortable with my help, and is not comfortable with my brother who has always been pushy and ungrateful. Mom doesn’t want his help and he resents it. He told me that he thinks mom has "lost it" and that he's going to see an attorney about taking over. What can I do to help mom? – N.B.

It is good that you realize your mother is the person in charge of her own legal issues. She might rely on you for assistance, but she can and should make her own decisions as long as she is able. Neither you nor your brother can legally make decisions for her unless you are authorized to do so by law.

Since your brother is making noise about taking legal action against your mother, she needs to visit with her own attorney. It may be best if you are not in attendance at that meeting; in fact, it may be best if your mother is the person who calls for the appointment and if she takes a taxi instead of being driven by you.

There are several legal ways for someone else to legally make decisions for your mother. Guardianship is a court process designed to prove whether your mother has become legally incapacitated. If the court agrees that she is incapacitated, the court can involuntarily lift from her the right to make her own decisions, and instead vest that control with her Guardian.

Because guardianship is an involuntary court proceeding (from your mother’s perspective) the law provides various procedural safeguards designed to protect her legal rights. One safeguard is something that she can create proactively: a Declaration of Guardian. Her attorney can prepare this legal document for her, to be signed before court proceedings are initiated. In it, she declares that if someone should try to impose Guardianship, she elects a certain person (perhaps you) as Guardian and disqualifies certain people (like your brother) from ever being appointed Guardian.

A Declaration of Guardian can then be shown to your brother’s attorney, and eventually to the court. By law, the Judge must reject your brother as Guardian unless he can prove that your mother was incompetent on the date that she signed the Declaration.

Another procedural safeguard revolves around a provision in the law which states that the court must select the least restrictive alternative in providing for your mother’s care. If your mother has made her own voluntary plans for her care, with her attorney, in a legally binding manner, then the court may allow that planning to stand instead of appointing a Guardian.

That type of advance planning is the other way by which your mother can legally delegate authority for making decisions. While she is discussing the Declaration of Guardian with her attorney, she should also discuss a Durable Power of Attorney or a Living Trust. Both are designed to delegate authority for financial management. She may choose to appoint you as her Agent or her Trustee, which would give you legal authority to handle her finances without any court intervention.

Your mother should also create and sign a Medical Power of Attorney, in which she would appoint an agent (and alternate agents) to make her medical decisions if she later becomes incapacitated.

After the legal issues are settled your mother should examine her relationship with her son. Why would a person who she is pushing away want to spend his time and money to help care for her? Perhaps his pushy behavior is the only way he can get her attention. She may want to seek guidance from a family therapist to address any deeper emotional issues in their relationship.