Gain Withheld Power of Attorney

[boatingal007]

What is the name of your state (only U.S. law)? Florida


I have a situation where my brother is caregiver of my mother who has Alzheimer’s. In June, I found out he gained Power of Attorney of her without my father’s consent or me knowing. My father and I have asked for a copy over 5 times and so has my father. He has not provided it. Now, I found out, he has POA since September 08 and my brother is claiming my father gave tape recorded permission. My father claims NO!

My father and I are beside ourselves for he will not share the POA, and is making all decisions medical and financial. He does not give me any medical information and limits my visitation of her. Of course, my brother is not working and either is his partner so her finances are diminishing rapidly.

Am I entitled to see it? How do I get a copy? How do I have it changed to be a secondary? Does my father have any recourse? He is fully capacitated in which my mother is incapacitated and was so when she signed the POA.

Thank you,
Heartbroken Daughter

[latigo]

Complaints over the abuses or suspected abuses of the elderly by persons purportedly exercising authority under a power of attorney, particularly within families, is becoming so prevalent that it needs to be addressed by the individual state legislatures. At least that is my humble opinion.

Because as it stands now there is no practical way that this type of abuse of agency authority can be directly challenged or revoked except by the person that supposedly granted it. And as in your case the grantor is not competent to do that.

The only effective legal recourse you have is for either you or your father to apply to the probate court for the appointment of what is known in Florida as a plenary guardian.

But you are going to need the services of an attorney in order to do that.

But once accomplished the plenary guardian can revoke and strip the brother of whatever authority is acting under and assume full complete control over the person of your mother and her finances. *

Plus, if there has been any monkey business with her finances the brother can be required to make a full accounting of his activities in that regard.

[*] Florida Statutes Section 744.102

“ (b) Plenary guardian" means a person who has been appointed by the court to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property. “

[boatingal007]

thank you for our inpute. How can i or my father get a copy of the Power of Attorney? My brother will not give it to me or my father.

[latigo]

Originally Posted by boatingal007

thank you for our inpute. How can i or my father get a copy of the Power of Attorney? My brother will not give it to me or my father.

With all due respect, why the thank you? You ask for professional advice and I gave it to you, but you return with the same question.

Do you recall me telling you that you needed copy of your brother's power of attorney BEFORE applying for appointment as the plenary guardian for your mother? I don't remember doing so.

Why this fixation of yours in thinking that you need to see the POA anyway?

He may have one and he may not. He may have a durable power of attorney and he may not.

The hard fact here and what is understandably distressing you is that he is assuming absolute control over your mother. So what practical difference does it make whether he has a POA or not?

The problem as it sits now is that there is no means by which anyone can legally challenging him.

If your mother was not mentally incapacitated, she could revoke whatever authority he is acting under.

But because she is not capable, someone has to be appointed by the court to look out for her interests. And that is done through a guardianship proceedings in the probate court.

Once appointed a plenary guardian is empowered to “exercise all delegable legal rights and powers of the ward” and that would include revoking any authority previously vested in the brother.

I’m afraid you are not getting the point. Either that or you are so reluctant to hire an attorney that you are wistfully grasping for straws with no wind and no straws.

I would really like you to do something to curtail this officious, ironhanded brother of yours who is likely dipping into the cookie jar. BUT you can't do it by reading the POA or surfing around on the Internet.

You must consult with an attorney!

[BlondiePB]

To add to latigo's advice, just because one is appointed a guardian (plenary or limited over a person) that does not make one the ward's Health Care Surrogate. The court order must also state that the guardian is the Health Care Surrogate.