Jan L. Warner & Jan Collins
Question: My mother, age 79, signed a financial and a health care power of attorney several years ago and appointed my older sister as her agent. Everything was fine when Mom took care of her finances at home. But when she entered an assisted living facility last month, everything changed. My sister became very bossy, refuses to share information with me about Mom, and is secretive about Mom’s medical care. When I complained, my sister restricted when my children and I could visit to times she knows I‘m working, and she directed the facility not to let me take Mom on visits to our home, which she enjoys. She even took the telephone out of Mom’s room, and told the facility to refuse the mail that I send Mom. I went to the facility to discuss this, but was told they were not at liberty to talk to me because my sister is Mom’s “power of attorney.” Yesterday, I received a letter telling me if I came back, I would be arrested for trespassing. But I have done nothing disruptive.
Mom is not incompetent. She needs help taking her medications and bathing, but she is the same pleasant person that she has always been. My sister refuses to talk to me. How can I get to see my mother? Can my sister do this legally?
Answer: No, she can’t -- but sometimes people appointed by Mom or Dad to positions of trust overstep their authority and interfere with the senior’s autonomy -- despite their rights to be cared for in the least restrictive environment possible. First of all, neither a financial power of attorney nor a health care power of attorney gives any agent such expansive rights. And, as a matter of fact, the health care power of attorney is a springing durable power of attorney, meaning it doesn’t even become effective until your mother becomes incapacitated and is unable to express her wishes. Furthermore, it deals with medical care, not the right to visit. In addition, under the Patients’ Bill of Rights, your mother has the absolute right to see whom she wishes, and to communicate freely with people of her choice. This includes the right to freely communicate with you and others by telephone and via other methods. Based on your version of the facts, we believe that both your sister and the facility have crossed the line without justification.
While your situation is serious, it is not uncommon. There are several possible remedies. First, since your mother is a resident of a licensed facility in your state, you can report the situation to the ombudsman’s office, which can investigate and, if intimidation or overreaching is present, can refer the case to the appropriate legal authorities. You can also bring a guardianship/conservatorship proceeding in your local probate or surrogate court, but this will be expensive, the results will be uncertain, and it won’t get you immediate relief, if you receive any at all. Because there has been interference with the United States Mail, you can also contact the postal inspectors. And lastly, because your rights and your mother’s rights have been trampled, you can bring a civil action for damages. We suggest you contact a lawyer experienced in this area of the law to implement a plan before it’s too late.
Taking the NextStep: The law of most states is antiquated when it comes to the elderly. For example, if your mother were a child and you were the parent, you would be able to go to court and secure visitation rights. Your sister has made your mother a captive. We believe that state legislatures must face this issue head-on by enacting “The Senior’s Code” that, much like “The Children’s Code,” could give you and millions like you not only the specific authority, but also a court system to resolve these kinds of issue. Because this situation often includes tampering with an estate plan or moving funds, you will probably be facing litigation after your mother’s death.