I’m asking to help a friend. He has been trying to care for his father in his father's home but his out-of-state sister is trying to call all the shots and prevent the children from seeing and caring for their father. I don’t know if any formal papers have been filed. Unfortunately, my friend cannot afford a lawyer.
Matilda
It all comes down to who has POA. If no one, then sister has no say.
She has POA...a lot involved here. Is her POA Immediate or Springing where a doctor or two needs to declare the person incompetent to make informed decisions to make it effective. With Immediate, its effective upon signing but I feel if person is competent, they still make their own decisions until they can't.
I feel if you have to show a bank, other financial institutions, Doctors, and Hospitals that you hold POA then you should prove it to siblings if they are not aware one was written up. Its just so easy to say "Here is the POA". I feel when someone won't prove it, they really don't have one.
If sister is POA and Dad is competent, he can h hers revoked and the son assigned.
"A sibling with power of attorney typically cannot prevent other siblings from seeing a parent. Certain circumstances may prevent a sibling from seeing a parent such as a court preventing visitation.May 19, 2021"
For a POA to be able to prevent a child or sibling from seeing a parent or other sibling the POA needs to show just cause. The cause could be that they upset the person. The parent or sibling does not want to see that person. The person makes trouble at the facility every time they are there. Because of problems between siblings and one holding POA, they really can't do anything.
I too wonder why if Sister lives out of state how can she ban a sibling that lives close by.
Pieces missing from this make it hard to even guess what is going on. If sister is out of state, how is she controlling who goes in/out to help dad? If you don't know about any formal papers, that indicates (to me) that your friend hasn't seen any nor had anything sent to him in writing banning him from being at dad's home. The aunt may be calling and creating verbal havoc, but has she actually done anything that keeps your friend off the property?
There could be much more to the story. As in, was your friend/his siblings ever involved in talking dad out of money? Does your friend have his own income (that would show he doesn't need to move in and live off dad's income)? Too many times relatives don't really want to do the dirty work of caregiving, they are just getting their foot in the door for their own benefit. Family history may come in to play where the aunt is making things difficult - maybe just protecting her brother.
FYI I'm asking those questions because my husband recently went through dealing with a busy-body non-blood family member who inserted herself into my father-in-law's private affairs (my husband is his dad's POA) and I understand how upsetting such things are for people who are trying to care for a parent.
Knowing the answers to the aforementioned questions would help get your friend better answers. That said, under normal circumstances when someone does not have any POA paperwork in place, a person's children are far higher on the pecking order of next of kin.
However, I think it unlikely that the sister will come from out of state and apply for guadianship of a man who is in the care of his son. She would not win. The nuclear immediate family has precedence in this country barring any allegations of abuse.
It is, in this case, crucial that the son is appointed guardian or conservator if the father is incompetent. He cannot otherwise protect and use the father's funds for his care. So an attorney is a MUST and would likely not cost more than one month of this gentleman's social security. There is some pro bono attorney work being done also. Check at senior centers, local councils on aging, APS to try to get some guidance on how to proceed. This father's funds are going from SS into an account. How is that son accessing for shared costs of living, and etc.?
Surviving spouse or registered domestic partner
Children
Grandchildren
Parents
Siblings
Nieces and Nephews
Grandparents
Aunts or uncles
Cousins
If there's no PoA, then this is a different problem. Rules can vary by state. Adult children don't automatically become legal managers of their parents for medical and certainly financial affairs.
How old is his sister? Could she be old enough to have cognitive decline herself? It's not wise to have a PoA who is a close age to one's self.
In this family's situation if there's no PoA and the Father is not competent to create one, then guardianship may be the only solution.
Unless the aunt can produce such paperwork, he needs to politely tell the aunt to back off. It's hard enough to care for someone without having a bossy back seat driver.
Now I am going to play devils advocate....why is the aunt jumping in? Has something happened? Why does she feel her brother is not being cared for properly by his children? Do the children have a history of taking advantage of their dad? More detail would be helpful if you have it...
But ¨rights¨ implies a legal standing. The only person that has rights to make a decision is the person in question, the person being cared for. If he is competent he needs to make his wishes known, and get them documented legally so that in the event he can´t make them known, it is clear what he wants done.
That being said, we have an out of state sister than tries to insert herself with FIL and tends to play both sides of the fence and it complicates things frequently.
I don´t know that a lawyer is strictly necessary to create and sign a POA in today´s world of available legal documents online - it probably depends on the state in which they reside. There are all kinds of legal documents online that people can create themselves and then have notarized - but research would definitely need to be done to ensure the legality of the documents chosen in the state.
The only rights that matter are those of the elderly gentleman. If it is in his best interests to be cared for in his home primarily by his son, then your friend needs to demonstrate that. If the out of state sister has grounds to be concerned that this is not in the gentleman's best interests, then your friend should take the sister's concerns seriously and address them.
Would you like to say more about what is actually going on?
Things for you (or friend) to do:
1) If Dad is legally competent, he needs to give you (or two of his kids) a POA, so that legally they are in charge if his health deteriorates. You can down load the forms from the net in most places, and there should be instructions.
2) Check that all the other paperwork is in place. The ‘living will’ for what he wants and doesn’t want in an emergency or when he is very ill. A normal will that does NOT make his sister the executor.
3) Find if there is a Community Legal Service within reach that will give basic legal advice free. Or just a lawyer who gives a free first consultation. If you have done the spade work in advance, having it checked at a free meeting will give you a lot of confidence.
4) Read through the (free) resources on this site. Click on ‘Care Topics’ at the top right of the screen, then on W for Wills and P for Power of Attorney. You will find many more topics that will help you to get up to speed on the many many things to learn about the mechanics of care options.
5) When you are on top of all of this, blind your aunt with your superior knowledge. Tell her that her ideas are of course welcome, and please could she put them in writing in detail, so that you can all consider all her ideas together.