A sibling has durable power of attorney and has told us he can basically do what he wants and we can't stop him. we have a parent who recently fell and needs some care so we put her in assisted living temporarily. He has it in his mind that she is to stay there. The other siblings and I feel that if they become healthy enough to go home, per the doctor, whether she needs home health care or not she should be able to go home. He is saying no, he wants her to stay in the home. We're not worried about the assets portion of his POA but asked him to relinquish some authority on her medical aspect as he lives hours away and we are in town. He claims the parent has dimentia but we don't feel they do, their mind is sound. They would like to give the POA to different sibling. Is this possible to do
POA is conferred by the principal (mom) and if she has the capacity to revoke it then she can assign POA to someone else. If she is too far gone with dementia to do that and is truly incapacitated, then the best way to resolve this may be through guardianship, if he is not acting in her best interests. However if you head into court and he is the AIF under the last valid POA then that will be a big factor for the judge to consider in possibly appointing HIM the guardian. So you need to hire a knowledgeable attorney who can help you think this out well in advance. James Frederick of Livonia is active on AVVO and is a fine lawyer with much expertise in this area. Good luck.
No legal representation exists by virtue of this answer. Consult your attorney. Licensed to practice law in Indiana and Illinois. Circular 230 Disclosure: any U.S. tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any matters addressed herein.
1 found this helpful
2 lawyers agree
As long as your mother has capacity, she can revoke her existing POA and sign a new one. Since it sounds like this is likely to be contested, I would strongly suggest that you involve an attorney to take care of this. There is a chance that if the family cannot agree on these issues, that the probate court may need to get involved. That is always unfortunate.
***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!
1 found this helpful
6 lawyers agree
In addition to the statements of my fellow attorneys regarding the revocable nature of the POA so long as your mother is mentally competent; I would also add that the answer may depend on the "type" of POA. Some key questions include:
1) Is the POA "Springing" or effective upon execution?
2) Is the POA for finances, medical, or both?
3) If there are seperate documents for finances and medical care, is the acting sibling also named as the POA for heatlhcare, a/k/a Patient Advocate?
4) Does the POA contain a "consultation" provision requiring your brother as POA to consult with / inform you and the other siblings regarding his actions as the POA,; and if so, is that provision required or precatory in nature?
Finally, if all else fails, you may encourage your sibling with the POA to consult with an Elder Law / Estate Planning Attorney. Depending on your mothers health and financial circumstances, there may be anumber of options, each with vastly different consequences available to you and you family.
Hope this helps.
2 lawyers agree