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Does a durable POA give a child rights to make decisions even if there is a living spouse?

Baltimore, MD |

A friend's mother gave him POA several years ago. She is now incapacitated to the point of being non responsive, intubated and clearly unable to communicate. There is some danger to her from the spouse. Does the POA that my friend has give him the power to make all decisions for his mother during this time or would the spouse have the right to make decisions that would override the son's decisions?

Attorney Answers 4

  1. Contrary to what many people think, a spouse is not legally entitled to make healthcare decisions just because of his or her status as a spouse. We are all free to pick our own healthcare agents to act on our behalf, and that is done with a medical or healthcare power of attorney.

    From your question, I assume this is a healthcare POA, and not a "business" POA. If the POA is current and valid, your friend should be calling the shots about the mother's care, not the spouse.

    Best regards,

    Scott J. Golightly

    Disclaimer: I am a VA attorney and only licensed in that state. This answer is general in nature and should not be relied on as legal advice. Nothing in this answer creates an attorney-client relationship.

  2. I'm sorry to hear about your friend's situation.

    The Durable Power Of Attorney gives the authorized person the right to do the actions authorized in the document to the extent that they are legal.

    A durable power of attorney does not typically cover the authority to make health care related decisions. It usually covers buying and selling property etc.

    Someone would actually need to review the document and see what it says.

    Your friend should contact an attorney in the State the mother lives in as soon as possible.

  3. It's not clear form your question whether yur frined (the son) was given a health care power of attorney or just a financial power of attorney, or both. If this lady gave anyone a health care power of attorney in an advanced helath care directive or living Will, that is th eperson who has the authority to make health care decisions. If no one was gicen this power, then the dpctors would probaly look ot the the living spous,if competent and in a non-estranged, ongoing marriage realationship. In any event, where there is no advanced health care directive, the doctors would likeley consult with both the children and the spouse, AND use their own discretion, as they are not eager to be sued or accused by anyone of having made an innappropriate or hasty end-of-life decision.

  4. Yes, your freind has the right. a spouse as spouse may have rights depending on sate law if there wewre no POA, but once there is one, the person named in it has fullrights. Clear;ly your friend's father thought this out tand perfers his son. His wishs must be respected.

    Sonya Mittelman is aNew York attorney and hence her answers ar ebased on New Yotrk Law. Please seek advice from acompetant attorney in youru own state

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