Mark Mccown: Power of attorney can’t overrule wishes

Published 12:00 am Sunday, September 26, 2021

Dear Lawyer Mark: I have a question about a power of attorney.

I gave a power of attorney to my son a few years ago, and we have now had a falling out.

He told me I have to go into a nursing home, but I don’t want to go.

He told me that I don’t have a choice because I gave him the power of attorney and that he now gets to make the decisions for me.

I told him that I could then just end his power, but he said I can’t.

I think he just wants me out of the way so him and his girlfriend can move into my house.

Can he do that to me? — Worried in Windsor

Dear Worried: Your son cannot overrule your wishes by using a power of attorney.

A power of attorney is a document that allows someone (called the attorney-in-fact) to act on your behalf, doing those things authorized in the document.

The purpose of the power of attorney is to allow someone else to act on your behalf if you are unable to be present when the business is conducted, or to provide a means of someone taking care of your affairs if you become disabled in some fashion.
It is important to note that a power of attorney does not allow someone to go against the wishes of the person who signed the power of attorney, so long as that person is able to signify their wishes.

In other words, if you tell the nursing home you do not want to be there, and there has been no judicial finding that you are incompetent, the nursing cannot force you to stay.

Likewise, your son cannot force you to go into the nursing home by using the power of attorney.
Instead, if he believed you were mentally incompetent, he would need to bring guardianship proceedings against you in probate court.

Only then, upon the court finding you incompetent, could you be forced to stay there against your will.
If you are no longer getting along with your son, you may want to consider revoking his power of attorney.

Most powers of attorney have broad authority given, including the power to spend money, take on debt, sign contracts and even sell property.

It is not enough that you simply tell your son that you no longer want him to be your attorney-in-fact.

If your son still has the original, or even a copy of the power of attorney, your revocation must be written in a particular form, as well as recorded at the recorder’s office so that everyone is legally put on notice that you no longer consider him your attorney-in-fact.

Additionally, if you revoke the power, I recommend that you notify your banks and credit card companies as well.

Thought for the Day: Learning is not attained by chance, it must be sought for with ardor and attended to with diligence. — Abigail Adams