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If u are the 2end person to be power of attorney and the person before u is your sister, can u over rule her ?

Canton, OH |

my dad is the 2ed person of power of attorney and his sister's name is before him. My grandma is in a nursing home she lives hour and half away from us.My dad wants to move her to a different location so she can be closer to family (my grandma is 89years old and her husband just died).his sister live out of state and wouldn't be able to visit her much, but if we could move her closer to my dad their would be family that lives 20 to 30 minuets away. the problem is his sister will not let my dad mover her.Her augment is that the place where my grandma is staying she is getting the best help and the docs already know her file. the clam my grandma is incompetent witch lays the problem of my dad being able to do anything. so what can my dad do to over rule his sis so my grandma can live closer

Attorney Answers 3

Posted

If your grandmother is competent, then she gets to determine where she lives. If she is not competent, then the POA would seem to give your father the right to make that decision. Your aunt would not appear to have any legal authority to stop that. Of course, if the issue is pressed, your aunt could file in probate court to become guardian of your grandmother. There is no telling what a judge would decide, but that is something you may need to contend with.

James Frederick

***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!

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Posted

my ants name is 1st on the power of attorney before my dad's. and yes my grandma is incompetent so she can not determine where to live. if my dad takes her to where we want her my ant will refuse to help pay and says my dad will have to pay it all. (he is retired/unemployed so we cant). and because my ants name is 1st, doctors and other people say they have to listen to her and her word is finale...but because she lives out of state when she is not around dose that mean my dad would be the power of attorney or would they have to do what my ant want..

James P. Frederick

James P. Frederick

Posted

If your aunt is ahead of your dad, there would appear to be two options: 1) work something out with your aunt; 2) go to probate court to try to have your dad appointed as guardian/conservator. The first option is always better, if you can do it. If not, I do not see any other option. It is currently up to your aunt to determine what is in your grandmother's best interest.

Posted

It depends on what the terms of the Power of Attorney are. That is the POA may not include the power to make decisions concerning medical treatment and placement. Also, I am not sure from your facts as to whether your father and sister are co-attorneys in fact (persons appointed to act) under the POA or if there is a priority. The terms in the document are critical and should be reviewed by an attorney familiar with these cases.

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Posted

If your aunt is named as Agent under the Power of Attorney, the decision is hers to make. There are, however, two basic types of Power of Attorney: The Durable Power of Attorney for Health Care (which names a "guardian of the person") and a Financial Power of Attorney (which names who will be in charge of finances. In this instance, it is the DPOAHC that controls.

Your aunt and your father both have valid points. If grandma is comfortable where she is and receiving good care, it may do her more harm than good to move her to another facility. If, on the other hand, she is capable of recognizing her family and there would be more family around if she lived somewhere else, that might be better for her. Your father can petition the court to intervene if he thinks your aunt is not acting in your grandma's best interests, or he can file a petition to be appointed Guardian. However, grandma's Will or POA may nominate your Aunt as Guardian, which will make it harder for your father to be successful. And guardianships are very expensive and troublesome to administer.

This is a tough--but very common--situation. I would suggest you spend a couple hundred dollars for a consultation with an expert probate attorney to tell your whole story and get proper advice.

Mr. Huddleston is an Ohio-Certified Specialist in Estate Planning, Trust & Probate Law, with offices in Columbus and Dayton, serving client families and private business owners throughout Ohio. He may be contacted directly by phone toll-free at 888.488.7878 or by email CLH@HUDDLAW.COM. Mr. Huddleston responds to Avvo questions as a public service to help educate and provide general guidance to questioners, but his responses are not legal advice and do not create an attorney-client relationship.

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