How do I get a power of attorney revoked? an it be revoked?
An older friend of mine was put into a nursing home by his son, where he cannot leave the building, and cannot have visitors. His son apparently has power of attorney over him and his money.
His son ordered the nursing home to not allow him to the building at all. He has been in there for 2 years now - he cant even go to a store to buy clothes, to a restaurant, or to go on an outing with some of his old friends. This man cannot leave the building at all.
This man is totally mentally capable,and if he was allowed to see a lawyer or a judge, I cant see how anyone can say he is not totally mentally fit. He wants to get out of that nursing home and regain control of his money and his house and get his life back.
There is no other friends or family that this man has to help him.
I think any judge would agree that this guy is capable of making his own decisions if he got a chance to see a judge or whatever.
The law varies from jurisdiction to jurisdiction but, generally, a power of attorney is revocable at will. State law may require that the revocation take a certain form.
If the son holds the power of attorney as the result of a commitment, a conservatorship, or another legal proceeding or action that calls his father’s competency into question, then revoking the power of attorney will probably take a court order.
I suggest that you consult a lawyer licensed in your jurisdiction who practices in elder law or health-care law. He or she can advise you about how you or your friend can assert and protect your friend’s rights.
Can the employees of a nursing home actually, physically, prevent someone from leaving? Wouldn’t that violate the Constitution?
A doctor (surgeon) admitted to me that he can’t legally prevent me from leaving the hostpital if I insist on going. No matter the circumstances.
Peace,
mangeorge
Yeah, they lock the doors, and they have guard stationed at the doors anyways. They phyisically stop inmates from leaving by brute force. I dont question that they can do that, most people in nursing homes cannot take care of themselves, and we dont want these incompetent people from wandering away.
I got in to see this person on Mothers Day, when I went to see someone else and ran into the competent person that should not be there.
Since this person has no money for a lawyer(his son has all of his money), I am willing to pay myself for this person to get an attorney.
I really found this story hard to believe myself, but it is true. I have no idea how the son originally got control of this mans money and house, but frankly, it is an injustice as far as I can see. I talked with the man for hours, and even tested him, and his memory and awareness is as good as anyone else in the real world. He should not be there.
That quotation actually comes from the Declaration of Independence, not the Constitution.
The fifth amendment does say that no person shall “be deprived of life, liberty, or property, without due process of law.” But if the OP’s friend gave a power of attorney to his son, and the hospital is following the son’s instructions, then there is no due-process violation. (There is not even any state action, unless the hospital is a public facility.)
I was talking about the fifth (thanks, brianmelendez). I wasn’t aware that a mere POA could negate all that. I assume that “due process of law” would refer to the criminal courts, not a civil action.
Well… I suppose this could be some kind of nefarious plot by the son, but these situations sometimes come about because the intitutionalized person has some kind of a mental instability or related problem that comes out under the stress of dealing with everday, outside life. BTW I have never heard of a no visitors, lock down nursing home policy.
Before you put on your white knight armor and wade too deeply into this elder potential abuse scenario you had best confirm the facts of the situation from someone other than your friend before you proceed or you might wind up looking foolish, wasting money and/or getting sued.
“Due process of law” is a very broad term, which covers govenmental action of all kinds, not merely criminal and civil litigation. For a summary of constitutional due process, see this thread.
A power of attorney does not “negate” due process. An attorney-in-fact (that is, a nonlawyer holding a power of attorney, as opposed to an attorney-at-law) is the client’s “personal representative”–meaning that, in the law’s eyes, the attorney stands in the client’s shoes and can legally act on the client’s behalf. If the OP’s friend gave a power of attorney to his son, and the hospital is following the son’s instructions, then the hospital is–in the law’s eyes–following the OP’s friend’s own instructions.
The hospital might be violating the OP’s friend’s rights (not necessarily his due-process rights, unless the hospital is a government-run facility, but his right to freedom from unlawful restraint) if it is detaining the OP’s friend against his will on its own authority, or on the word of a stranger. But not if it is following instructions from his son who holds a valid power of attorney.
So giving power of attorney to his son (in this case) can remove the rights, as specified in the POA (PoA?) from the old guy?
I agree that the OP should contact the Elder Rights people in her area. They can investigate without raising any hackles. There have been abuses in elder care facilities, sometimes involving the family.
It can. A power of attorney can delegate the client’s rights in all respects, or limit the attorney’s authority to a certain subject (for example, it can let the attorney conclude a real-estate transaction where the client cannot personally attend the closing, in which case the attorney’s authority is limited to that specific transaction). It can grant broad discretion to the attorney, or it can instruct the attorney in any level of detail (for example, if the attorney is voting the client’s shares at a corporate shareholder meetng, then the client can tell the attorney exactly how to vote). It can reserve the client’s power of overriding the attorney’s action, or it can limit that power.
A power of attorney that limits the client’s own power is rare, though, for obvious reasons–which suggests that what the OP’s friend’s son is holding may not be a traditional power of attorney. It sounds more like a conservatorship or a guardianship, by which a court appoints a personal representative for the purpose of managing the affairs of someone who cannot competently manage them for himself or herself–and which usually cannot be revoked without the court’s approval. Or it may be some particular kind of power of attorney pursuant to that state’s law. There are several legal devices, including but not limited to a power of attorney, by which someone’s legal rights can be voluntarily or involuntarily transferred to a personal representative.
Zette gives good advice: the best course is contacting the hospital’s patient-rights advocate (and, if necessary, a lawyer).
I dont see at all how ““I”” can be sued merely for sending my attorney to go see and talk to this man. I dont want to get involved at all, other than getting him good counsel. For what could I possibly be sued for? It is illegal to get a lawyer for someone?
CON #847 - Convince total stranger that you are a victim in a horrible curcumstance, a little money will set you free, and that you can and will pay it all back.
As has been said, look into this carefully before investing too much of yourself. You stated this person was a friend of yours in your first post, and that you just ran into them in your second post. I can’t really tell if you know this person or not.
Either way, you sound like a caring person being willing to help out in the way you describe.
Depends on how your assistance is characterized. You can be sued almost under any pretext. If you pursue this with the father, and it turns out the situation is not as the older man claims, and there is a perfectly good reason he does not have direct access to his money (assuming this is true) the family might well sue you if they incur legal debts defending themselves from his legal actions which you are funding. While funding a lawsuit is not illegal a smart lawyer and a vindictive plaintiff pissed at your encouraging dad to pursue a suit them can come at you any number of ways, and even if their claims are proved baseless lawsuits can be expensive, time consuming and exhausting.
I know you feel you are doing the right thing, but without being “ageist” I’d say lonely, older people in
their dotage, are not above telling all kinds of tales to get attention from caring sympathetic people. Proceed carefully.
That someone appears competent after “hours” of contact does not mean he is competent. The situation might be as you describe it, but it seems more likely that the older man is incompetent under certain conditions. Perhaps periodically, perhaps under certain stress, perhaps only about certain things.
You said he was your friend but later said you just met him (which does not mean he is not your friend, but does imply you don’t know him all that well.) You also said he could not have visitors, but yet you visited him for hours after getting in to see someone else… this does not sound quite right. Why do you think he can’t have visitors? Because he told you? Have you tested this by trying to visit him? Perhaps you found a delusion that is part of the reason he is considered incompetent?
Look into this, but do be careful. It’s likely your initial impression is mistaken.
Yes, I do know this person. I knew him for many years, but I havent seen him for 4 the past years. When I knew him, this man always did complain that he never got along with his son, and that his son never did treat him good. In the years I knew him, he never once said anything good about his child - extremely unusual.
I “met/ran into him” on Mothers Day when the nursing home was very busy and the staff was overloaded hoards of people visiting and coming and going.
I am now thinking maybe I should just give the attorney cash(not tell my attorney that the cash is from me - I will tell him that the cash is from the man), and tell the attorney that I am just “delivering the message” that this guy wants to see him and to hire him.
You are right that I have not tested all of what he has told me, since I just met him again yesterday. HOwever, now, I dont see why I should test trying to see him, “sign in” under my name, and thus make a written record that I am there to see him, which would officially involve me. By having my attorney go there to see him, there will be nothing in writing connecting me to him.
He did not ask for money or my help. He did not ask for money, so it never came up about paying anything back.
The man merely told me the situation which he is in, not expecting/asking me to do anything.
It was my idea to have him tell his story to an attorney.
When I went to the home, I was looking for him, because I recently heard from several other people that he was there, and that his situation was as described, so I wanted to talk to him to verify what others recently told me.