is not mentally capable to make mdical decisions and she doesnt have the knowledge to know what to do for him?
Estate Planning Attorney
From your facts, your brother does not sound competent enough to grant you the power to be his attorney in fact for anything. Your only recouse in my opinion is to seek to be his guardian through a court proceeding.
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3 lawyers agree
Mr. Geffen is correct. If he doesn't have the mental capacity to make medical decisions for himself then he doesn't have the mental capacity to grant you his power of attorney for medical care. The only alternative then would be guardianship of the person (and perhaps of his estate too). That is a court supervised process. It is stressful and expensive. Everyone, absolutely everyone, from the age of 18 should have some very basic estate planning documents in place which include: Will; General Durable Power of Attorney, Medical Power of Attorney, Directive to Physicians Concerning Life Support, Designation of Guardian in Case of Need, and Designation of Agent for Disposition of Remains.
DISCLAIMER: This is not specific legal advice and does not establish an attorney/client relationship.
2 lawyers agree
Estate Planning Attorney
I agree with the other answers. I am sorry to hear about this situation, especially because with proper planning many of these issues can be avoided. If your brother lacks capacity, a power of attorney is out of the question. If he does have capacity and wants to appoint you as agent, that would be great, however you cannot force him to appoint you. He can appoint whoever he chooses.
Instead of a guardianship, if your brother is incapacitated, and you only need to consent to medical treatment for him, you might be able to do so under the Health and Safety Code Section 313.004. This allows someone to consent to medical treatment on behalf of the incapacitated person. However, there is a priority for who gets to make the decision and the incapacitated person's spouse is first, so if his wife is available and capable of consenting for him, you cannot. This is obviously much more limited than a guardianship and does not include the ability to make financial decisions.
Guardianships can get very nasty and expensive depending on the situation. It might be necessary in your case, but determining the best course of action is fact specific so you should consult an attorney.
Newill Law Firm
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