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Need help with dying father's situation - financial and medical.

Mesquite, TX |

My father has end-stage cancer.I am an only child. I have medical POA, but he refuses to give POA.I'm the only one mentioned in the will. He did leave his "lady friend" a large sum of money - $94K, however, they have never lived together or married. He has chosen to live his remaining days at her house. In my opinion, she is money hungry. This money is in an account POD to her. Lately, he has been making decisions that are strange (SOME). He is on hospice, but I called his oncologist yesterday and asked if the large tumor on his skull and meds could be affecting his judgement and they said of course.My fear is that she will talk him into MPOA. Father's Day, she kicked me out of her house.Now she says I am welcome, but that could change.What rights do I have and what advice can you offer?

Attorney Answers 2

Posted

I am sorry about your father's medical condition and there other issues you are contending with.

If your father is incapacitated, then you currently have the right to make medical decisions. You do not have any rights over the financial assets, as things now stand.

IF your father is incapacitated and you do not believe he is of sound mind, in the absence of a POA, your only recourse would be to go to the court and be appointed his guardian/conservator. This would allow you to control everything, but you would not be able to change the beneficiary on the account going to the girlfriend. You COULD use money from that account to pay your father's bills, however.

Whether or not you have time to go through the guardianship/conservatorship proceedings, or whether it makes sense to do so is not clear. You may want to consult with an estate planning attorney just to determine what is involved in the process in terms of timing and costs. Also, if your father is not incapacitated, then you will not be able to get the court appointment(s). It is only to protect him during incapacity. If you DO end up going to court, you will certainly want an attorney to assist you.

Your father's negative stance on the POA issue is unfortunate. I believe every adult person should have this form, in order to avoid the need to go to court.

Best wishes to you and your father!

James Frederick

*** 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.

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4 comments

Asker

Posted

Can I make him leave her house with MPOA?

James P. Frederick

James P. Frederick

Posted

I assume that your father is currently incapacitated. If he is not, then you cannot do anything under a MPOA, (or most other POA forms). You would also not be able to act as guardian, unless your father is incapacitated. If by MPOA you mean Medical Power of Attorney, I would say no. As guardian you could do this. As agent under a General Durable Power of Attorney, the answer would probably be yes.

Asker

Posted

Thank you! Not what I wanted to hear, but thank you.

James P. Frederick

James P. Frederick

Posted

You are very welcome. I understand, and wish I could give you better news. You were wise to try to get your father to sign a general durable POA. These forms are extremely valuable and EVERY adult should have one, in my opinion. Since he refused to do this, it has handicapped your position to a large extent. Best of luck to you! You are in a very difficult position.

Posted

I am so sorry to hear about your Dad. I too have gone through this.

Since you have his Medical POA, you can make medical decisions. But unfortunately, you do not have any power over the financial matters for your Dad right now.

A question that I have is, has a determination as to your Dad's mental capacity in order to make a POA now been made? If your father is incapacitated, but he knows who you are, and how much money he has, he may be capable to sign a POA. He of course, has to want you to act in that capacity. If not, then you will have to file for a Guardianship or Conservatorship in which the Court appoints someone to handle his financial matters in lieu of a POA. Then you can handle his finances and possibly change beneficairy designations.

Good luck with your Dad.

CIRCULAR 230 DISCLOSURE: Pursuant to U.S. Treasury Department Regulations, we are required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein. Individual circumstances can change the accuracy of this answer. You should check with a qualified Elder Law attorney in your area.

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Asker

Posted

I appreciate all the advice, as it was most helpful. Unfortunately, in the last couple of days he has revoked the medical power of attorney with me being agent and given that to the lady friend and also given her durable POA. He assures me that everything will be safe and he trusts her. She's playing him like a banjo. In answer to your question about his mental capacity, he is competent BUT this is not the dad that was present even 2 months ago. He never would have done this. He passes all his "mini mental exams" and remains quite intelligent, but with the tumor present on his head now and the morphine, who's to say? I'm just a nurse, not a doctor or social worker for hospice that performs those.

Asker

Posted

I appreciate all the advice, as it was most helpful. Unfortunately, in the last couple of days he has revoked the medical power of attorney with me being agent and given that to the lady friend and also given her durable POA. He assures me that everything will be safe and he trusts her. She's playing him like a banjo. In answer to your question about his mental capacity, he is competent BUT this is not the dad that was present even 2 months ago. He never would have done this. He passes all his "mini mental exams" and remains quite intelligent, but with the tumor present on his head now and the morphine, who's to say? I'm just a nurse, not a doctor or social worker for hospice that performs those.

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