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If my mom in of sound and mind, does her medical POA have any authority to make decisions if mom can leave the facilty and come home. The doctors have given the OK for her to leave, but the facility refuses to fill out any paperwork. They say they have to talk to mom's POA. I thought the medical POA only has power when mom becomes incompetent?

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POA has no power as long as person is sound of mind. However, the facility may have concerns about how sound her mind is - temporarily not doing well because of drugs, infections... Better to meet with facility and make sure mom is at that meeting as well.
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No. If your mother is in her right mind then the POA isn't even active. Also, you can always call this POA and ask to see the documents.

You are correct. POA only becomes active if a person becomes mentally incapacitated due to illness or injury and cannot make decisions for themselves.

If your mother has the green light from the doctor to go, then she can go. She wouldn't be going AMA (Against Medical Advice) nor would she be an unsafe discharge.

A possible and very common explanation for why a NH drags their feet about discharging someone is insurance. They want to bill the insurance for the maximum number of days they will pay and they can't do that if the patient isn't there.

Go and pick your mother up. She is not in jail or being held captive. She has every right to leave. If they make trouble about it, head straight to the police and then a lawyer. You're going to need both.
The cops because your mother is being against her will and she is perfectly competent and is still in charge off herself.
The second because she will need to change her POA over to you and to discuss the lawsuit you will both be brining against the NH for unlawful and criminal restraint.
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A POA doesn't have any "authority" over someone. The POA can only act on behalf of the person if they cannot make decisions for themselves. For example your mom has had a stroke or has been in an accident and is unconscious or has dementia and can no longer comprehend enough to make a medical decision. If your moms tells the doctor "I don't want this"....the doctor would have to listen to her.

"Guardianship" is when you are completely responsible for someone and you have gone before the courts and they have deemed the person unable to take care of themselves and the courts are assigning their wellbeing/guardianship to you.

I had a coworker with a mom that refused to seek medical attention and refused any help. She was a 4 pack a day smoker with mid-late stage dementia. Her daughter was afraid she would burn her house down and she wasn't taking care of herself...forgetting to eat, no longer knew how to make herself a meal, etc. My friend had to go before the courts to get guardianship so that she could forcibly place her mother into a memory care facility. It was awful and her mom fought her tooth and nail, but it was necessary for her own safety.

I have been very fortunate with my own mother. She has been very compliant and has allowed me to manage her care without putting up too much of a fight about things. I know there are some who have not been so lucky.
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Depends if it's 'active' or not. Sometimes when that document is made, the medical POA is immediately in charge unless a box is checked that states they are not until that person is deemed incompetent. You gotta read that document. If it's is bad news, get an elder law attorney to help is my suggestion.
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BurntCaregiver Aug 2023
How is that real? I have been POA to four people and there was never any boxes to "check" off on the documents that were done by a lawyer.

POA documents when they are done properly by a lawyer in a law firm and not printed out online from a website are very clear.


No one has a POA document created which legally allows another person to deprive them of their liberty because they went to the hospital, rehab facility, or walked into a doctor's office.

The more likely explanation is the nursing home is lying.
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What the POA can and cannot do depends on the particular POA. It's common to have a POA activated when the individual in concern is declared incompetent. However, in my family, we have always set up both medical and DPOA as immediate: they can be invoked once the POA documents are signed. In our situation, it's meant that it was easier for one of us to pay the bills, talk with home health care providers, etc., without having to involve the person for whom we held POA who preferred we take care of some of these things. However, it could make for disagreement in a situation such as the one LEXIE is involved. You need to consult the POA documents themselves to determine your mother's specific situation.
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KaciNC Aug 2023
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LEXIE12811: Retain an attorney. Notify her physician that she is being held against her will in the facility.
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Your mother, as she is competent to act for herself, should call an attorney at this time to take care of this problem. A competent adult can withdraw a POA she conferred upon someone. She can begin on Monday by calling her MDs to tell them she is being held against her will in a facility and that she needs from them letters of absolute legal competency to act on her own behalf and make her own decisions at this time.
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I'm not certain what you are referencing with "medical POA." But in any case, someone who is a POA only has the right to make decisions the signer delegates to the POA. For example, I have a POA document, but I am fully capable of making my own decisions. The POA document would only come into play if I became incapacitated.

On the other hand a Guardian makes decisions for the ward. To become a Guardian, or get a Guardian assigned requires a court proceeding.

Note: I am not an attorney, but I have considerable experience with legal matters.
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Unfortunately seems any kind of facility (hospitals, LTC ,etc) these days seem to assume that any elderly person , especially after age 80 , is NOT of sound mind. When I took my mother to the ER the staff would ask questions of me and not her. Once admitted, they asked stuff like .” Does she use a w/c or a walker ?” Ummm, she walks just like you and me. ( yes at the time she was experiencing difficulty but was because of her high calcium levels affecting her ). At hospitals these days this is exacerbated by them utilizing hospitalists who don’t know the patients rather than having their own doctors involved in their care ( who know what their baseline is so much better at diagnosing and issuing orders). When she was sent to a SNF for some rehab/recovery which was mostly needed , imo , because the hospital never bothered to even get her out of bed , the staff was immediately asking us who her POA was - even tho she was competent. She also said that they treated her like a child and didn’t explain anything ( coming into dark room in early morning hours and just turning on the bright lights , yanking covers off , and being rough while putting her into a Gerichair)
To your issue — get a lawyer out of town, try to convince mom to move near you - perhaps in an AL or IL depending on her needs. Unlike others , I question that the facility is doing anything because of a fear of “unsafe discharge”..they are doing this for profit and perhaps to assist your cousin since the owner is friends with her. I would even resort to taking your mother and traveling back to Indiana and then getting her examined by a doctor if needed to confirm competence and getting a lawyer to revoke the POA and appoint you instead .
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Seek counsel from an elder lawyer. Ask for a letter from the lawyer to present to the care facility. This usually helps give the clout needed.

I think you are correct in that they have no right not to release her. In fact why can’t she simply walk out? Those are my thoughts, and maybe not the best thing to do because I don’t really know the situation. But I sure wouldn’t accept what they are saying just because they’re saying it!
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For most complete answer consult with an Elder Law Attorney and ask for review of the POA document wording that you have. It may be in your, your mother and all concerned best interest both for present and long term needs.
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The key here is:
Is she mentally competent or not?

If a doctor says no, OP you can ask for a 2nd opinion. Even 3rd, etc.

If you feel the doctors at the facility aren’t objective, contact other doctors. Your mom has a right to a 2nd opinion, 3rd…
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As I said, please call APS.
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Well guys I think I f****d up. I talk to one lawyer and as soon as I said the name of the facility administer he cut me off and hung up. Everyday since then there has been nurses, doctors, social workers in seeing mom. I assumed to see if she can be declared incompetent. See, this is a small town and the poa is good friends w/ the owner. That's how mom got put there. So everyone is hurry since they got tired off. I told mom to revoke but she wants a lawyer there w/ papers ready so nothing can be questioned.
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BillyT2020 Aug 2023
Keep calling other lawyers - make sure it is a reputable one w/ eldercare experience. You might even need multiple legal opinions. Are you there with her? I see some replies elude to APS, on what grounds will this be based? Is your mother safe? Is she injured? Is she enduring any form of abuse? Is someone taking money from her? Since she is competent, talk w/ her and ask her what her take is on everything and what she wants to do. Perhaps you'll need a witness?
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I'm a little confused as to whether this is just a medical POA or a durable POA for financial. If mom is being denied her money by the POA then this is more than just a medical POA. In either case, mom can assign new person as POA for both medical and financial, and as part of that process the lawyer would include language that all other POAs are revoked as JoAnn notes. You'd have to find out where Mom's accounts are and provide them with the new POA document so the previous POA can be immediaely blocked from handling Mom's funds. And of course you'd have to let the AL know that you are now mom's POA. If your mom truly is of sound mind and wants to leave, she has every right to do so. However, I can see a facility being concerned if there is no clear and safe discharge plan. You may not be fully aware of all mom's needs and whether they can be met by what you are proposing. Even if your mom ultimately ends up in an AL, it could be closer to you. And even if you don't move mom right away, if you are concerned about the current POA you should certainly work with your mom and a lawyer to have that changed as soon as possible.
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"if we revoke and the poa gets out of it and still had power then the whistle has been blown" I don't understand this. If u have proof of wrong doing then the POAs should be revoked ASAP to keep cousin from doing more damage. Then you get your proof together and consult with a lawyer, try an Elder lawyer, about bringing charges against her claiming abuse of the elderly. POA does not give the assigned person the right to steal, lets say. Get that POA revolked now. Then the problems u have now will be solved.

If your Mom is of sound mind, she can revolk the POAs. If she wants to assign you, the new POA will say, "this POA revolks all others".

My Moms medical read that I only took over her Medical if her doctor said she was incompetent. And then, IMO, the Medical POAs responsibility is to carry out the principles wishes. Meaning a doctor wants to put the principle on a feeding tube and the Directive says no feeding tube then the POA tells the doctor that.

I had Immediate POA but I never "took over" until Mom asked me to. When her Dementia progressed, then I had to make decisions because she couldn't. But a Springing POA only goes in effect when the person has been formally declared incompetent by doctors. As long as your Mom can make decisions for herself, no one is really POA.

I hope Mom has a copy of her POA. She shows it to the facility and AL. She, or you, tell the powers that be that Moms POAs are not in effect because she can make decisions on her own. By the way, the POA cannot turn their responsibilities over to someone else.
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Barb is right APS needs to step in. Is the POA document legitimate? Did moms cousin place her in assisted living? Sounds like a messed up situation. Hope you get things figured out for moms sake
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Call Adult Protective Services.
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Lexie, I just read your profile. You and mom both want her home, POA does not. You live in a different states..

The solution pretty simple. Mom revokes her health POA and re-assigns it to you.

Is mom competent enough to do that? Get ger lawyer on the phone.

I'm guessing that the HPOA is seeing signs that mom isn't safe living at home.

The AL must be seeing that sending mom home alone would not be a "safe discharge".

What level of care do you propose her having at home? Can she afford it?

If mom assigns you POA, are you willing to manage her at home care, getting her to doc appointments, making sure she has food and supplies?

How will you handle it if aides call out?
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I remember when my mother was hospitalized, then in rehab which turned into LTC. Although she was never declared incompetent, I as HCPOA was consulted. My mother wasn't. Of course by then she was out of it. But no formal declaration was ever made. The attorney who did her trust said it was a gray area.

Come to think of it, even before she was hospitalized and I was still allowed in to her doctor visits, the PCP would get things okayed by me. My mother often didn't hear, so didn't even know. Once she forbade me from going back into the examining room with her, I never knew what was said or done or recommended.
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The answers given are true. There is no power, if she is still of sound mind. This is what I tried to tell my aunt's neighbor, and my family that when I was POA, I couldn't make decisions for my aunt unless she was declared incapacitated. Their argument was to take her to court and have her declared incapacitated. Who has time and money for that? I don't.
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“If your mom hasn't been deemed incapacitated, then she can make all of her own decisions and a Medical POA doesn't have any authority to make decisions for her.”

This is correct.
If POA (agent: your sister) and principal (your mom) disagree on a medical decision, your MOM gets the final word.

Example:
my POA document became effective the moment my mom signed (I already have POA powers, even though my mom is competent). BUT if she and I disagree on a decision, SHE gets the final word, because she’s mentally competent.
If in the future she’s mentally incompetent, I get the final word.
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