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Does a durable power of attorney over ride a spouse, if the spouse is not named as the "attorney"?

Detroit, MI |

I have family that lives in North Carolina and one family memeber is not being treated right by her husband. She's had heart surgery and has been in rehab for the past four months, now the husband will not let her back in the house, will not give her any of her belongings, yells and screams at her, will not allow her to check her finances, and is planning on sending her to an assisted living facility,when she has family ready and willing to care for her. If she sets up durable power of attorney, will that over ride the husband? Or will he retain control of her affairs?

Attorney Answers 3


  1. A power of attorney is a grant of authority from one person to another. In your scenario, the wife could certainly execute a power of attorney (assuming she has the capacity to do so) and name anyone she chooses as her agent. The power of attorney might be effective right away, or might be effective only in the event of her incapacity. It might be broad and sweeping, or only for limited decisions.

    Regardless, the agent then acts as though he or she was the wife when it comes to decisions about specific affairs. The agent becomes accountable to the wife and must act within the wife's best interests. The document does not override a marriage, but then I'm not aware of a marriage granting one spouse any kind of control over the other. If the husband and wife own property together, her agent may act only with the same abilities that the wife might herself.

    This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship.


  2. I agree with Attorney Thomas' response, and would simply add that if there is something specific that you need to know, we would need more information from you. For example, the agent under the Power of Attorney might be given the right to make medical treatment decisions that the husband *might* otherwise have, in the absence of such a form. On the other hand, if all of the assets are joint, the agent would not be able to prevent the husband from accessing and using the assets, as he sees fit. The agent might be able to likewise access the assets, however, as the wife would otherwise be able to.

    In order to be more precise in terms of advising you, we would need to know what you want the agent to be able to do, (and to prevent the husband from doing.) In the event that the wife no longer has the mental capacity needed to sign a Power of Attorney, then the only recourse you would have at this point is to petition to become her guardian and conservator. If the husband opposes your appointment, then it could be a difficult battle.

    Best of luck to you!

    James Frederick


  3. A durable power of attorney may be granted by a person who has capacity to an agent to enable the agent to act on behalf of the grantor either while she has mental capacity (for convenience) or in the event she becomes incapacitated. Generally speaking, with very few limitations (for example, an agent could not make a will for the person) the agent can carry out business and personal transactions for the person. Your relative has rights to her property and certainly can check her own finances or have her agent do so for her. She is entitled to her personal property. Even though they remain married, that does not give him the right to withhold her property or assets from her. Unfortunately, since she lives in North Carolina, you will probably have to address these issues in the courts of that state. You will need the assistance of a lawyer.

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