Does the health care POA have the right to withhold information and do they have all the power?

I have almost the exact situation with a client....except for it is his mom, the POA's live out of the area and the local son takes care of mom. The kids actually told his mother she has no money and changed the locks on the house so the local son can't get in...he has things stored in her house too. I know some of the answers and look forward to hearing what other QUALIFIED people have to say before I voice what I have found.....unfortunately, if the POA document gives the kids (agents) the power to act on the parent's behalf, they can do it. Parent needs to be competent to revoke and change the current POA.

That sucks about your brother. We never had POA from our mom when she was made ill by an incompetant doctor. The hospital made sure we never got her in a lucid state to sign papers because they could have been accused of malpractice. But it is SO incredibly important to have POA and if your dad knows what's going on between you and your brother, how about bringing papers to him so he can revoke your brother's status and sign POA over to you? There's got to be a doctor at the rehab facility who can check your dad to deem him competent. We tried to do that with our mom and we had one small chance that she was lucid enough and even had the attorney scheduled to stop by but the hospital sneaked her away for a procedure and after that we never had an opportunity to have her sign papers. I would also get an elder law attorney immediately to start working on your case. S/he might be able to get a court date to determine that your brother is slacking on his duties as a POA. I would document everything that he says/does, times/dates so that you have a paper trail. Bring a little calendar book with you next time you visit your dad so he won't be suspicious about what you are doing and write down on the day what he did, then expand on it once home. I would also transcribe any phone conversations with your brother as best as you can. I did that with my sister when she thought she could steal stuff from our mom's estate without repercussions. But get that attorney so that it's documented that there's something not right going on. I wish you well, you shouldn't have to deal with this while trying to care for your dad.

There is some benefits to being an only child, no crazy siblings to deal with when your parent is elderly and disabled. I would seek out a good elder law attorney. If your father becomes more lucid and gets enough mobility to function at his home and that is his wish--it has to be followed. POA on heath care placement doesn't take away the elder's right to direct their care. Especially if he has the income and savings to make staying home an option, that is what your brother needs to make happen.

I had a durable POA and a health care directive for my 90+ father but I could not just do what I liked and ignore his desires. First it is immoral and second, my father had the right to revoke both of these directives with the help of a lawyer.

Some adult children get drunk with their so-called power over a parent they
had issues with during their upbringing. However, the adult child is not " in charge" if the parent choses to halt their involvement in their heath care or financial decisions.

Good luck, get some good legal advice and step up to make sure your father's wishes are enforced. If he is unable to come home with help, he will have to face that fact and decide what other arrangement he would want. It is the elder's life, not your brother's decision.

If a parent needs to be evaluated by the primary physician and one other person, as designated in the PoA, I have been advised that papers should be signed within one week. PoA's have a fiduciary responsibility and should be transparent with at least one annual report to all siblings. I learned this when one of my siblings wanted certain things her way, including relocating my mom to a different state, but not in the best interest of my mom. Elder attorneys are overbooked where I am, and time may not be on your side. You need to be advised and move quickly.

Good luck with that,was your dad competent when he signed papers.? Who made him poa for both? As I found out from a attorney once your dad signs signs papers that just about buries him if you're lucky. Your brother ,as the attorney put it can do anything he wants even jumping thru hoops. He can actually call the police to keep you away. Yes that's what he said,so be as nice as you can and civil. The other option is getting guardianship thru the courts but that will cost you money and proof that he's neglecting your dad. That's where you need to talk to his dr. if brother hasn't already told them not tell anyone anything about your dads case. So talk to your dad when your brother is not around ask him if he signed those papers and if he's ok. So good luck.

I just went through something similar with regards to my husband. I was trying to get him to sign a POA over to me. The nursing home and the psychiatrist on staff got involved and informed me he didn't have the capacity to sign. After many stressful weeks I retained an Elder Care Attorney who informed me that the medical staff has no say in these matters. She accompanied me with her 2 witness' asked him pertinent questions, for example did he know what he was signing and why, among other things. She was satisfied that he knew what he was doing and I left with the POA in hand. The nursing home staff surrounded us arguing with my lawyer, she put them in their places and they scampered away.I was put through the most stressful few weeks of my life. I will never again enter a situation with "my pants down". Hire an attorney. Find one that will give you an hour consultation for free, there are still some of them left!

When someone appoints their fiduciaries (power of attorney, health care surrogate, successor trustee, etc.) while they are legally competent to do so those fiduciaries (known as Agents) have the full legal authority to make decisions on behalf of the person who appointed them per the terms of the appointing documents. This means, for example, that if your dad's health care document says that your brother can act, as Agent, if and only if dad is incapacitated per the definition in the document, then dad gets to call the shots as long as he hasn't been found to be incapacitated by that definition. In other words, dad is presumed to have decision-making capacity unless he has been found otherwise per the terms of the appointing documents. Sometimes the documents require two physicians to declare incapacity in writing, sometimes only one, and sometimes, unfortunately, it is left vague. Power of attorney documents most often are "durable" and "non-springing". This means that they become effective immediately at signing and don't rely on a determination of incapacity. However, these documents generally only govern financial affairs, not health care or living situations. So, the first thing is to read (or have someone who knows what they are looking at do so) the appointing documents and then to determine whether your father has been adjudicated incapacitated per the definition in the documents. If, after that, you feel that something is amiss, you can contest the documents and/or your brother's actions through the courts. Obviously, this is disruptive and costly, so if you can find another solution to resolving the dispute that would be preferred.

Sheri

Ktr, you say: "I fear for my father because I know my brother really does not care about him."

Why do you say that? How do you know that?

This is the reason I ask. You describe - very well, I can picture the scene clearly - how your brother tried to prevent you from entering the room where your father was having PT. But here's the thing. Why is a man who doesn't care at all about his father physically present in the rehab facility? What was your brother doing there?

Your parents gave your brother POA through their own choice. This is not something that your brother could have forced or persuaded them into. Your parents may have made a *bad* choice, one that isn't working out well; but still, it was their own free choice. They must have had a reason.

To answer your question, about whether a person with Healthcare POA has a right to withhold information: he may not only have a right to do that, depending on circumstances he may even have a duty to do it. It is a question of what is in your father's best interests, and whether your father is able to make his own decisions, and what your father's expressed wishes are.

Now, you seem very sure that what your father really wants is to revoke the POA he gave your brother, and give it to you instead. So what's stopping him? Your brother? If your father has the legal capacity to act on his own wishes, your brother can't stop him, and in the rehab facility there are plenty of people around for your father to seek help from.

Which leads to one more question: what took your father to rehab? What happened?

{Q}When someone appoints their fiduciaries (power of attorney, health care surrogate, successor trustee, etc.) while they are legally competent to do so those fiduciaries (known as Agents) have the full legal authority to make decisions on behalf of the person who appointed them per the terms of the appointing documents.{EQ}

The key is the terms of the appointing documents.
Hopefully a lawyer has drawn up the documents. The details matter. Violate the terms and you, IMCO, are liable and can be subject to legal actions {being sued etc.} Attorney in fact documents are often abused.

I think the agent can withhold information from family. If your not part of the details are you not out of the picture? HIPAA rules.

THE POA HAS NO POWER UNTIL THE PERSON HAS BEEN DECLARED MENTALLY/LEGALLY INCOMPETENT. YOUR MOTHER CAN DO WHAT SHE WANTS, INCLUDING CHANGING POA AND HEALTH CARE PROXY. YOU SHOULD DO THAT AND THEN HAVE HER DECLARED INCOMPETENT TO MAKE THE FINAL DOCUMENTS STICK.

YOUR FATHER (sorry) DOES NOT HAVE TO BE DECLARED COMPETENT UNLESS HE HAS ALREADY BEEN DECLARED INCOMPETENT. YOUR BROTHER HAS NO POWER UNTIL HE IS DECLARED INCOMPETENT. HAVE HIM SIGN NEW POA AND HCP FIRST.

My mother had identical DPOAs drawn up on the same day for each of us four offspring, which I think is rather odd, especially since there is no designation specifying one of us for health and another for finances, nor do they give one sibling precedence over another. The docs state that she has full control of her affairs, financial and medical---even though she has dug herself into a financial hole while we looked on helplessly. (She is an inveterate control freak and takes advice from nobody.) In other words, as long as she is deemed mentally competent she can manage (or mismanage) her own life OR direct one of us to handle what she feels she is incapable of doing.

Here's the gotcha: according to the DPOA docs, if and when she becomes mentally incompetent (which slippery slope she has been sliding down for at least a decade now), the case must be adjudicated by "a court of competent jurisdiction." In other words, it will be up to a judge to either accept her physician's statement of mental incompetence (which I now have in my possession) or decide that only a court appointed physician and psychiatrist can make that decision, to the tune of many thousands of dollars. Thanks, Mom...

Please listen to Lizann---she's right on target as far as I'm concerned. I pity these people who are not only children. I remember wanting a brother or sister when I was younger but I appreciate my parents for not making it happen. Lot easier for me when it was time for me to assist my dad and mom. Also like what Lizann had to say about the limits of POA---when your mom or dad wants something different, you'd better listen. My mother got tired of caregivers after we had some who failed and her head caregiver and I had to listen to what she wanted--no caregivers on certain nights. Although my mother injured her foot when there was no caregiver present, we followed her wishes (foot injury combined with COPD and diabetes was responsible for her death). After the foot injury, we hired another caregiver---mom told head caregiver that she didn't like her(wished she would have told me and I would have fired that caregiver--shows that my mom was near the end--sometimes I wish that I had ignored my mom and done whatever needed to be done but my mother was a strong person with her own ideas of how things should have been done---glad I listened to her.

Someone else said this earlier, so I'm really just agreeing with the statement that unless your father has had an elder care evaluation an been deemed incompetent, your dad has final say in what is done. I'm the POA for my mom, but she is competent, so she can (and does on occasion) over-ride what I have arranged for her. It is very difficult to have a person declared incompetent. You have every right to a copy of the medical and financial POA. If it reads that your brother is POA should your father become incapacitated, your brother has no legal power if your dad is capable.

One quick thing I forgot to add. I have asked nurses at the hospital and rehab centers my mom has been a patient with about the confusion while she is there. The all have told me that this is very common - especially at night, because the lighting, scenery and activities don't change in the facility. There is a medical term for it, but I don't know what it is. In short, your dad's confusion while in a rehab facility is not an indication of incompetence.

The POA can withhold information and more often than not, they usually do. This person was appointed by the parent to act in their behalf. Sorry, but you will do yourself more good by letting this issue go.

God I hope everyone is wrong. A POA is assigned to help someone when they can't make their own decisions either because of medical or even georgraphical issues, maybe they are outof the country. The POA should only be able to overule the person's wishes IF that person is declared incompentent however the jurisdiction defines that. It makes no sense for my POA to overrule my wishes if I am of "sound mind." Nothing else makes sense.

Thank you all for so much information....I really appreciate it. The reason I do not believe my brother cares all that much is because he has shown no interest in him for years I have taken my Dad to all of his doctors appointments for the past 14 years. I work full-time and my brother has been retired for the past 4-5 and not once offered to help or even come with me. He never takes him anywhere, invite him to his home, etc. The day after this past Christmas my four siblings showed up at the house unexpectedly hoping to take my Dad to the hospital (apparently the had been planning this without my knowledge). The wanted to get him out of the house. They called his internist and asked him if he would have him admitted and he said he would not do it for no reason. They told him they wanted him there so when he got out he could go to a physical rehab facility but he still refused. I was hoping he could go to rehab but I did not want him to have to go in the hospital first. Little did I understand the real reason why my brother the POA wanted him out of the house....I did hear him say to the others just before he left the house that he was going to find a way to get him into a hospital. He even said he would take him to emergency but was not sure what he would tell them why he brought him there. Strangely enough my Dad started to become very sleepy on and off and became less active. It also appeared to be getting short of breath so I took him to the cardiac dr. and he ordered a stress test and echo but I ended up taking him into the hospital where they found some fluid on his lungs. He was in the hospital four days and the sleepiness ceased. Once my Dad was in the hospital that is when my brother started to show interest and once he went into Rehab he was not sleepy anymore but started with "sundowners" at night and also agitated because he wants to go home. He had the rehab doctor say he has dementia. At that point without my knowledge he started to show his power and took over my Dad's accounts, his house and has decided that my Dad will never go home. He got all of my siblings to agree with him and he told me that "he has all the power now and everyone against me." He shows up at the Rehab facility for show and calls the doctor and acts like he is concerned. He does not show up there on Fri-Sat-Sun - does not want to ruin his weekend. Anyways my father has been there for almost two months and was not making much progress until I found out he was getting little rehab time so I complained and they picked it up and he has been making so much progress since then. However, they are planning on releasing him in a week even though he could use about another 3 weeks. My brother plans on having him move into a Independent Living Facility but so far the rehab facility does not recommend it so he does not pass an assessment. He is having another assessment on Monday. His nurse thinks it is inhumane and could kill him to put him there because he would live in a separate apartment by himself. He will have an in home caregiver company help him with his needs on a 6 to 1 basis. My Dad had in home caregivers at home. It breaks my heart that he is not allowed home because that all he has asked for since he got there. He has no idea what is going to happen to him in the next 7 days! I did contact attorney who said he would go wherever my Dad is with papers to sign as long as his doctor deems him competent but I have to get him to his dr. once he is released from rehab. My family has now disowned me and my niece/god-daughter's (who I adore) has her graduation party next weekend and I have been told that I am not welcomed not even to stop in and give her a gift. It is so heartbreaking that I cry everyday! They text lies about me everyday to each other. The nurses at the rehab think my family is crazy! I just hope he will be able to handle moving...he is almost 87 years old and everyday he asks me when he can go home (he begs). I just hope I can get the POA from him soon so if it is possible he can come home if it does not workout and ILF ... if he is happy there there will be no problem but I do not want my father's life in the hands of my rotten brother. I believe my Dad is competent to make the decision of who he wants managing his healthcare needs. I am just afraid I am not going to be able to change things. I have a feeling my brother will do whatever he can to have control of my father. He wants me out of the house and has for a long time. I will buy my own home and take my father in if that is possible. My Dad worked hard all his life and he was there for my Mom so she could stay at home when she got sick and could not care for herself. I want the same for him even though it is hard. Visiting on a daily basis at the Rehab is much harder than helping him at home.

Kevin B. I'm dealing with a similar situation, too. However, I'm the sibling that changed locks, moved the parent, and is being 'accused' of excluding one sibling. I've found that chances are, if the entire family is being accused of 'turning against' one sibling there is a strong foundation for that turn. In my case it was tens of thousands of dollars 'borrowed' with no intention of repayment, violent anti-social behavior, use of the seniors debit card for personal expenses, letting the parent live in filth and dangerous conditions when that sibling was supposed to be the care giver. My only regret is that I didn't take control sooner. So, if your client says everyone has turned against them, I would first ask why? They can't be completely innocent. And why is a grown adult 'storing' their belongings in their parents home? Because most of those belongings were never purchased by the sibling but were probably 'gifts' from the parent. And because the sibling took so much of the parent's belongings there was no room left in their house for their own belongings.

KTR, I don't understand why you didn't want your father to go into the hospital last Christmastime. How could it hurt him? But you did want him to get rehab. Well, a hospital stay is a good way to get a person into rehab, because the hospital doctors prescribe it if it's needed, and that way Medicare covers all of the cost for 20 days, and half of the cost for about 90 days more.

This is awful. I want to share my story. It has a different spin but you'll understand why I'm sharing it. My husband whom I have been separated from for 15 years ( high school.sweethearts) has just entered a nursing home at the age of 61. Due to the ravages of alcoholism. When I left with my 2 young sons, I left him the home we had worked so hard for with the intention of it going to our sons. Life went on, he met someone who moved in, I was hopeful things had changed for him. They hadn't. After many years she moved out. He has no one. He neglected his children so it's up to her and I. We have become a team working together to make sure he is getting the correct medical treatment and taking care of his affairs. It surprises everyone involved. The medical staff, the attorneys. We had never met or spoke to each other until this ocurred. We have now become close confidants, comforted by the fact that we can share this heavy burden. Take what you wish from my tale!

Sheri Samotin gave some good information. In PA, there is a NOTICE with the POA. It basically states that the person signing the document understands that things can happen without their approval...ie: selling the house out from under them. Like she stated, there is a "springing" POA that an event has to happen to allow someone the ability to act on the person's behalf...such as incompetence. In this case, generally there must be two unrelated physicians that deem the person incompetent. The other POA gives powers upon signing the document...that should be spelled out in the POA. Take heed in some of the information given on these posts...consult with a QUALIFIED

My computer decided to post all by itself......continuing the above statement:
....consult with a QUALIFIED attorney who not only will give you a good document, but counsel you and explain what you are getting and also explain options. Too many times you talk to someone who is just out to make a sale (yes attorney's too). They don't give advice, just take orders....and since most people don't understand what they are getting or asking for, end up with surprises down the road. After being an Estate Advisor for over 25 years, we have seen most everything and actually help attorney's draft better documents.

galoshes59, I fully understand what you are stating....but I've known the party that is being cut out for over 20 years and that is not the case in this instance. They store their belongings at mom's home because they started to build a house and had to stop because of his mother (and his wife's parents) needing care. They are living minimally so that their parent's have someone there to provide a protective environment. They now mostly live apart from each other taking care of their parents.

I understand that usually, somewhere in the middle is the truth...and many times the one saying that everyone else is wrong is usually the person with the problem....I have one of those we have just dropped as a client.

Thanks for the input though. In many cases, you are right on!

Go to a lawyer, the best $500 you could spend, and for your dads benifit. You should be able to reimburse yourself at some point also for that expence. If I were in your exact possition I would fight to take him into my home and to change that POA for your dads sake a good lawyer can do anything!!!

Shakingdustoff: I strongly disagree with your statement about revoking out-of-state family members. Our (my sister and I) situation is very similar. Our brother has POA of our 94 year mother. He lives about 45 minutes away from her facility whereas we are approx 6 or 7 hours driving time away and out of country. When she lived independently, once a month, we would come to clean her place, shop for things she needed, prepare meals for her, take her to get her hair done. Our brother took her to medical appointments and paid her bills. We helped as much as we were able, considering our physical distance and the fact that our Mom felt she should only take advice/assistance from our brother. At that time, we were advocating that she have some in-home care but our brother and mother adamantly refused. We were willing to pay for this service ourselves. To make a long story short, she had several bad falls at home and the hospital would not release her unless she went in a 24/7 care facility where she is now. Incidentally, we only found out about these falls afterwards and she was already in the home. Phoning daily to the manager and neighbouring tenants was one of the ways we found out about her falls. We travel to see our mom about every 2 to 3 weeks taking her out for a few hours. Our brother has not spoken to us for many years and ignores any communications from us whether by phone or registered mail. He refuses to give us any information about her medical background or her finances. Just recently, we took her out of the facility and after bringing her back, the staff made a comment about a bruise on her leg. We didn’t check before taking her out and thus have no proof the bruising was from a fall she had at the home, so the blame was placed on us. Because of this, our brother has sent us a terse note stating that we are no longer allowed to take our Mom out. Because of that POA, we have no rights. Since our brother will not communicate with us and the home owner is unwilling to stand up for us, my sister and I feel that our hands have been effectively tied.

MaryEllyn, I'm sorry for your hurt in feeling that you're being kept away from your mother. But reading both posts, I see your situation as being, rather, almost the polar opposite of Shaking's. Her brother is the distant sibling AND he holds POA. Your brother is the caregiving sibling - or at least the nearest one - and he holds POA. Well, shouldn't he?

I'm a little puzzled to read that you and your sister 'have no rights.' What rights do you think you ought to have? I'm sorry, again, that this feeling of separation has been created between you and your mother, but to play devil's advocate: you are not being prevented from seeing your mother, or communicating with her freely (more to the point, your mother is not being prevented from seeing you - she's actually the one whose rights are important, here, because she can't exercise them independently). You are being prevented from taking her out. This is for the - I would say - sound reason that the NH has lost confidence that you can do so safely.

Please don't misunderstand: I'm not unsympathetic, and I'm not the sort of person who thinks that people should necessarily make enormous sacrifices to care for their elders. But looked at from your brother's point of view - you helped as much as you were able, in view of the distance and your mother's preference for him to the extent that she perhaps unintentionally ignored you. But, so, helping as much as you could: well, that wasn't that much, was it? So your brother was actually doing most of the work? For very good reasons, but still - it was he who was doing it, for what? - 95% of the time. That's why, I expect, he also feels he should be in charge. I can't see honestly where he's wrong.

I repeat that I am sorry you feel hurt by his attitude. Does it perhaps come from some feeling of bitterness or resentment towards you and your sister? Were you close before now? It does seem a pity if it can't be put right. But the important person is your mother; so I hope that you and your sister won't cut yourselves off from her completely.

The POA can help with banking, etc., BUT IT DOES NOT PRECLUDE YOUR DAD FROM MAKING HIS OWN DECISIONS....unless he has been declared legally incompetent in court. He is still considered a competent adult just like you and me and can do anything he wants.... including signing a new POA!!!! Adult Protective Services can confirm this. Your brother can call Adult Protective to inspect, so have a solid care plan set up with the necessary equipment, aides, meds, etc. He can also hire a lawyer and petition for Guardianship, which would allow him more control, and it could become a legal battle in court if you challenge it. But at this point he cannot control your dad's life. Period.