My dad's stepchildren changed the locks!

A fellow caregiver asked...

My dad has been married over 25 years to my step mom. She has dementia and underwent a severe operation which required her to re-learn how to walk, talk and feed herself over an 8mo period. My dad was responsible for her rehab, and I assisted (5-6 days out of the week). She is no longer self sufficient in decision making. Recently my dad had surgery and asked his wife's adult child to pick her up to care for her while he recovered.

Because of past negative events with her children, Dad did not want anyone in their house without his presence. But, while my dad was in the hospital, all the locks were changed on their (my dad and step mom) house. Can they legally do that and what legal rights does my dad have?

Expert Answer

Steve Weisman hosts the nationally syndicated radio show A Touch of Grey, heard on more than 50 stations, including WABC in New York City and KRLA in Los Angeles. He is a practicing lawyer specializing in estate planning and is admitted to practice before the United States Supreme Court. He's a public speaker and commentator who has appeared on many radio and television shows throughout the country, and he's the legal editor of Talkers magazine, the preeminent trade publication of talk radio. His latest book is The Truth About Avoiding Scams.

Your question highlights the necessity that we all have to provide for substitute decision making in the event of our physical or mental incapacity. The simplest, least costly and most effective way of doing this is through a Durable Power of Attorney by which someone can designate the person they wish to make decisions for them in the event of an incapacity. A Durable Power of Attorney can also be tailored and limited in accordance of the person granting the authority to someone to act on his or her behalf.

Only a person of sound mind can make a Durable Power of Attorney so although your dad can do one now, if he has not previously had one created, your step mother cannot. For her and other people not of sound mind a court would have to be petitioned to order the appointment of a guardian.

In any event, it does not appear from what you have indicated that your step-mother's children were properly authorized to change the locks. I suggest that your dad consult an Elder Law lawyer to assist in correcting this situation.