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

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

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.

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!

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.

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?

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.

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.

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!

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.