Can My Sibling Put Mom in Long-Term Care Without My Consent?

First, What Is a Power of Attorney?

A power of attorney (POA) is a legal document where one person (the “principal,” in this case, the mother) grants another person (the “agent” or “attorney-in-fact,” in this case, a sibling) the authority to make decisions on their behalf. This authority can be broad or limited, and it can be effective immediately or upon the occurrence of a specific event, like the principal’s incapacitation.

Types of Power of Attorney Relevant to Health Care
 

• Durable Health Care Power of Attorney / Health Care Proxy: This specific type of POA grants the agent the authority to make medical decisions, including decisions about long-term care, when the principal is unable to do so.

• General Durable Power of Attorney: A durable POA typically grants broad authority over financial matters but may also include some general authority over personal care decisions. However, a specific health care POA is usually preferred for medical and living arrangement decisions.

Can a Sibling With POA Force Institutionalization?

The short answer is: It depends on several factors, primarily the scope of the POA and the mother’s mental capacity.

1. Mother’s Mental Capacity:

   • If the mother is mentally competent: A POA generally does not override the principal’s own wishes if they are still capable of making informed decisions. If the mother expresses a desire to live with her other children, the sibling with POA cannot unilaterally override that wish, even if they believe it’s in the mother’s “best interest.” The POA’s authority usually begins when the principal can no longer make decisions for themselves.
   • If the mother is deemed incapacitated: The durable health care power of attorney becomes active if a medical professional(s) determines the mother is no longer capable of making her own decisions, according to the stipulations outlined within the power of attorney document. In this scenario, the sibling with the durable health care POA does have the legal authority to make decisions regarding her care, including placement in a long-term care facility. However, they still have a fiduciary duty to act in the mother's best interest and according to her known wishes.
2. Scope of the POA:
   
   The specific language in the POA document is crucial. Does it grant the agent the authority to make healthcare decisions, including decisions about living arrangements and long-term care? If the POA is only for financial matters, it would not grant authority over healthcare placement.
    
3. Fiduciary Duty and Best Interest:
   • Even with a valid POA, the agent has a legal and ethical fiduciary duty to act solely in the best interest of the principal. This means considering the mother's wishes, her quality of life, and exploring all viable options.
   • If other siblings are offering to care for the mother at home, and this aligns with the mother's wishes and is a safe, appropriate option, the POA holder should strongly consider it. Arbitrarily placing her in a facility against her wishes or when other suitable care options exist could be seen as a breach of their fiduciary duty.

What Can Other Siblings Do?

If other siblings disagree with the POA holder’s decision and believe it is not in the mother’s best interest, or if they suspect abuse of the POA, they may have legal recourse:

• Communicate and Mediate: The first step should always be open communication with the sibling holding the POA. Family mediation might be helpful.
   

• Review the POA Document: Obtain a copy of the POA document to understand the exact scope of the agent’s authority.
   
• Seek Legal Counsel: Consult with an elder law attorney. They can:

• Review the POA document.

• Advise on the mother’s rights if she is competent.

• Discuss options for challenging the POA if there is evidence of abuse, neglect, or if the POA holder is not acting in the mother's best interest.

• Explore the possibility of seeking guardianship or conservatorship through the courts. This is a more drastic step where a court appoints a guardian to make decisions for an incapacitated person, potentially overriding or revoking a POA. This usually requires proving the mother is incapacitated and that the current POA holder is not acting appropriately.

• Report Elder Abuse: If there are concerns about neglect, financial exploitation, or physical abuse, contact Adult Protective Services (APS) in your state.

Key Takeaways for Families

• Open Communication: Discuss long-term care wishes with aging parents before a crisis arises.

• Clear Documentation: Ensure all legal documents, especially Powers of Attorney, clearly reflect the principal's wishes and are properly executed.

• Seek Professional Advice: When in doubt about legal authority or a parent’s best interest, consult with an elder law attorney.

This information is for general educational purposes only and does not constitute legal advice. It is essential to consult with a qualified attorney in your specific jurisdiction for advice on your individual situation.