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I have a health care power of attorney for my mother, but don’t clearly understand what events other than being near death would trigger my authority to act. Mom is not able to safely live alone any longer but refuses to let me hire in-home help or to move in with me.
There are a number of situations where the authority in a health care power of attorney might be triggered such as:
The person is often confused and/or acting erratically.
The person clearly needs assistance with activities of daily living such as personal hygiene, preparing meals, handling medication and performing housekeeping chores.
The person needs to be restrained from driving a car.
Medical attention is needed and the person refuses to go to a doctor.
Bills are not being paid and assistance is needed with financial matters.
The person has been or is being exploited and is not capable of acting to protect him or herself.
Unfortunately while the HCPOA document gives you the authority to act in such situations, it doesn’t mean your Mom is on board with moving, giving up her independence, or is willing to admit help is needed. If may be necessary to still seek a guardianship or one time protective order with a finding of incapacity through the probate court in order to override Mom. The HCPOA gives you priority to be appointed, but any person interested in the alleged incapacitated person’s welfare can commence a guardianship. Sometimes it is desirable for one family member to bring the action so Mom’s wrath is focused on someone else and the child with the HCPOA is viewed more as an ally. Venue is proper if commenced where the person resides or is present (institutionalized for extended medical treatment).
The Court must be satisfied that a guardianship is necessary or desirable as a means of providing continual care and supervision for the person. This is a true hearing where evidence must be presented, so think about how you will prove Mom needs help and substitute decision making. Do friends and neighbors see the same deterioration? What will her doctor(s) say? Do doctor or pharmacy records support she is not taking her medications as directed? Has there been any driving, wandering or other incidents?
A copy of the Summons and Petition for guardianship will be served upon the person and also to anyone actually serving under a HCPOA and if there is no spouse, then to the person’s adult children. The Court appoints a visitor to observe conditions and report his or her findings to the Court. A guardian ad litem, usually an attorney, will be appointed to represent the person. If the person has an attorney, then he or she will be appointed as guardian ad litem to represent the client/alleged incapacitated person. The Court will also order the person to be examined by at least one doctor and another qualified person or doctor. These examiners will file written reports to with the Court. SC Code 62-5-101 states that a person is legally incapacitated if he or she is impaired because of mental illness or deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication or another cause to the extent the person lacks sufficient understanding or capacity to make or communicate informed decisions concerning his or her person. Emergency relief can be granted where the welfare of the person requires immediate action. You may have to advance the monies to cover this legal process and then seek reimbursement from Mom’s estate.
If appointed you determine the person’s place of residence and medical treatment. You should also be prepared to exercise care to preserve and protect the person’s assets unless a conservator is put in place. Sometimes emergency orders can be granted to expedite the situation and protect your loved one.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.
WRITTEN BY LINDA KNAPP
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