Can I sue my father who has POA over my mother for not enacting the terms of the living will?

Put yourself in your Dad's shoes, he is losing the love of his life and he wants her around for as long as possible.... but he is acting out of deep emotional distress which isn't in the best interest of your Mother. Someone other then family needs to talk to him, such as your Mom's doctors, a buddy, a Priest or Minister. This is really tough on your Dad.

Is your Mother on Hospice Care? I would think a Living Will would over-ride a Power of Attorney. But I am not an attorney.

Sue your Dad? Really? Why put everyone through that extra emotional dealings and expense. Suing takes time. Would everyone want to be in an attorney's office or Court instead of being with their mother during this transition in her life?

Your father may not be ABLE to make that decision. It's probably the toughest one he'll make.

I assume your mother is in hospice?

Instead of considering legal action, I would have a nice, relaxing, nonconfrontational chat with him and raise your concerns. Perhaps one of your mother's doctors could have that kind of a chat as well.

Given what he's facing, not having the family on his side, but rather against him and considering suing him, must be one of the most devastating, disappointing events to deal with. He has enough on his plate now.

Your father may be considering that if he does make the terminal decision, it may haunt him for the rest of his life. It must be hard to face the fact that the end is near for his wife.

Put yourself in his place; if the situation were such that you had to make that decision for your spouse, what would you be thinking, and what would be required for you to make the decision? What would persuade you to recognize that the suffering for the dying person is so great that the most difficult decision of his life is required?

crhoads1024, can you please explain further exactly what it is that you are wanting your father to do? Is it to remove food and water, or a feeding tube? Is your Mom on Life Support?

These are probably some of the most difficult things to decide, when it comes to your Loved ones, and I know, because Ive been there, twice!
With our Dad, it was deciding if we were to aggressively treat his pneumonia while he was in and out of consciousness, and hadn't had a BM in 3 weeks. It was pretty clear, that his body was shutting down, but I was the only one, in such an emotional state, that wanted the Dr's to try treating him, just one more time, as I wasn't ready to let him go, I was wrong, and he died anyway.

In my Mother's case, she was on Home Hospice, dying from Cancer, that had metastasized to her pelvic bones, and she was in horrific pain, and suffering, even at the highest levels of IV Morphine. 8 days before she died, her RN told us that they felt it was time to have her transfered to the Hospice Hospital, as they could see subtle changes in her, that we her family could not. We agreed that this would be a good idea and agreed to her being transfered. She was taken to a lovely facility, geared directly for end of life Hospice. My Mom had a living will, and it was followed to tge letter without any of us disputing it, but it was still difficult to let ger go. The decision to withhold food was easy, as she wasn't interested in eating anyway, and when she began going in and out of consciousness, even fluids became difficult to give her on any sort of schedule that would sustain her. Our family was called into a meeting with 2 Dr's, and the DON, as well as a psychologist who recommended that the withhold all fluids, as our Mother was "Actively Dying", and that we could still swab her mouth to keep her comfortable. By this point, she was mostly unconscious anyway. It was explained to us that in the dying phase, any food or fluids would be difficult for her body to digest or absorb, and that when the body is shutting down, and fluids are held, the body enters into a euphoric state, and that the pain is much less, but that pain meds through her IV would continue at the same rate it been being given. Difficult decisions all the way around, but one all 6 of us kids agreed to. We never left her side, and one of us stayed overnight with her each night, and she died 5 days later, never showing any signs of discomfort, which was not the case when she was at home.
These are the hardest decisions to ever make, but remember, your Mom is his everything, and he just hasn't yet come to the realization that the end is near, and that needs to lst her go. I highly recommend this he have a meeting with her Dr's, and ask them to be very frank with him about prolonging her life versus quality of life, and when it's time to say goodbye. My thoughts and prayers are with your family, as your Dad comes to grips with losing his wife. Taking Legal action, IMO, should never enter into it. Not in this sort of thing! Speak with the Dr's, have them help him with his decision. I know that my own Mom had difficulty with regards to my Dad, due to Religion reasons, but God took over and took the decisions out of our hands, thankfully.

What exactly should he be enacting in terms of her living will? What do you want him to do that he isn't doing?

Most living wills name someone to make medical decisions if the person cannot make them herself. That person's judgment overrules the terms of the document. For example, if the document says no feeding tube but circumstances arise in which the healthcare proxy thinks a temporary feeding tube would be in the person's best interests, the proxy can agree to that.

So, what would you sue Dad for? Using his best judgment, which doesn't agree with your judgment? Doesn't seem like that would get very far.

You are all emotionally distressed. Know that Mother's death is ultimately not up to any of you, and that it will occur no matter what decisions are made.

Love one another.

She has been on a vent and a feeding tube for over 3 years. She has mental clarity. She cannot move any muscle in her body and is in a fixed position staring at a wall in total isolation from the outside world because she cannot speak. When she signed the living will she looked at me and said "I don't want to be a vegetable" this is a vegetated state. She suffers from what is believed to be MSA also known as Shy Drager syndrome. Read about it so you understand what she is going through. She cannot communicate she is not in hospice so unless someone very pointedly asks her to move her eyes in one direction or another to answer strict yes or no questions and then does this on a best of 3 or 5 basis as her motor control is nearly gone there is no answer to the question of "Are you in pain". I did this and deduced her answer to be yes. How long has she been laying there in pain? Nobody knows... Do people at the nursing home ask this question? Not regularly, she is laying there against her wishes suffering. She cannot shew the fly off of her face so she lays there like a starving African you see on tv with bugs and insects crawling on her face. Put myself in my dads shoes? Put yourself in her shoes and ask yourself if this is how anyone should be treated. I get this is hard on him but If he cannot make the decision due to emotional stress than he should not have that control as a POA as he is prolonging the suffering due to emotional stress. To sue is not to get over on him in any way, it is to force his hand as he doesn't want to make the decision but inaction at this point is the direct cause of additional suffering on her part. He is in complete denial regarding the wording of the living will and when he reads it he ignores the part where it states having "competence in communicating medical decisions on her behalf" and instead focuses on her needing to be comatose which she is not but when you have only yes or no questions and on a 3of 5 basis for accuracy and even then it can be debatable that doesn't show any "competence" in ability to answer questions regarding her medical care. I've had heartfelt conversations, my siblings have as well, there is no action on his part. So I'm only writing this question as a last resort because left to him it may be several years of suffering for her which we all know she never wanted.

Oh my. How horrible for you all, but especially for your mom.

I think the only person who would have standing to sue is you mom. Have you talked to any lawyers about this?

If she can express, even through eye blinks, that she would like feeding tube and vent removed, that would override the POA.

Oh crhoads1024, what a hideous, awful, terrible story!

I take it that you are wanting the feeding tube and vent removed.

I don't know about "suing" your dad. Have you talked to a lawyer? I wonder if pursuing guardianship would be a more fruitful approach.

Crhoads, there must be a mechanism for putting the whole question before a judge for the court to settle. I have zero idea what the formal term for this kind of request in the US would be - has anybody else? - but it will be some sort of 'judicial review'. I.e. you shouldn't have to sue your Dad, but you should be able to act as your mother's advocate given that he isn't doing his POA job. If your mother is at a facility, ask the senior staff where you can get advice on this. Horrible to think of, but your mother won't be the first or last patient to present such a quandary.

This is absolutely awful for all of you. I'm so sorry.

There are several death with dignity groups active in America, I would try contacting one local to your area and ask them for advice.

CR, thank you for taking the time to provide more details and share the tragic situation which your mother is facing.

After reading this last post, I agree that this is no way for anyone to live, especially since she's expressed her own wishes and executed the Living Will to ensure this wouldn't happen.

Now I'm thinking that your father may be in denial, hoping against hope that something will change. Or perhaps he's stuck in an indecisive mode and can't make the decision. However, the fact remains that your mother provided for a means to avoid this situation and your father hasn't been able, for whatever reason, to abide by her decision.

Like Babalou, I've been wondering who does have standing to take action.

First, I assume that no one is named as having authority to co-act with your father, and that there are no successor proxies to act if he's unable to act.

Second, your father could be considered as being in breach of the Living Will; it might even be a contractual issue for failure to abide by the terms of the LW. Review the LW to see if there are any terms that allow for specific actions in the event of default or failure to act by the named proxy.

Your mother would be the one to have standing, but in her absence, I think a substitute would have to be appointed. But these are the actions I would take.

1. Do some thorough research and contact either an estate planning or elder law attorney, in a law firm with multiple practice areas, including probate litigation. You absolutely, definitely want a litigator involved in this issue.

2. There might be a way to get a Next Friend appointed through an ex-parte order, and that Next Friend would be the Plaintiff in a suit to revoke your father's authority under the LW.

3. My own experience with Next Friend suits was decades ago when a family member, generally a parent, was appointed, again via an ex-party order, to act on behalf of a minor in a lawsuit. I did some quick checking and find that a Next Friend can act on behalf of someone who can't act for her or himself, and the appointment isn't limited to minors.

4. I suspect that a competent and interested attorney could do some research to determine if there are precedents for a Next Friend suit on behalf of a woman in your mother's condition. Representation of a vulnerable adult would be one of the issues to research.

5. If so, the Court could appoint someone only for the purpose of revocation of your father's authority and appointing you and/or your siblings to make the decision, but solely for that purpose.

6. A competent attorney should also do research to find supporting situations, such as when others have sued to override or revoke a named party's authority in a situation in which someone is trapped in a nonrecoverable physical state.

7. I think that involvement of a court appointed Next Friend might take some of the sting away from the hurt your father would probably feel, but there are going to be some tough times in the family. You might want to see if there are any social workers, either through the hospital or a selected funeral parlor.

8. The NF friend appointment could be short, limited, and solely for the purpose of action under the Living Will. An attorney NF might be appropriate as an attorney would have malpractice liability insurance to provide protection against any repercussions by your father.

9. Once the LW is enacted, the suit could be dismissed. Short, but not so sweet. Yet it would accomplish the task.

10. A NF suit with an independent professional is preferable to your suing your own father and creating disharmony in the family, which could last for years.

11. It's possible a court may also appoint a physician to act as NF.

12. It's likely that a court may in fact involve an independent physician. You might want to consider martialling your own medical support by getting written advice from physicians that there is no hope for improvement and that your mother's condition is not such that prolonging her life is advisable, but in fact is cruel.

13. And be prepared to provide support to your father during and after the process, especially during the funeral, as he too will be suffering in his own way.


Regardless of how it's handled, you as well as your siblings are also facing some challenging emotional times. I can only hope that you can quickly find an attorney to help resolve this so the pain of your mother's ordeal can be put to rest.