What can I do to help him lift ex-wife from D.P.O.A. ?

1 answer | Last updated: Sep 15, 2016
A fellow caregiver asked...

My father has vasular dementia and has named his ex-wife as D.P.O.A. She in turn is now spending his money like water to benefit herself and her family. I am listed second on the document. She now will not let me talk to my father at all. I am out of state in FL. and he lives in MO. He knows who I am everytime I call him and I did tell him what she was doing and he indicated that he wants her revoked as D.P.O.A. but they won't take him where he needs to go to change it. The doctors say he is incompetent of making that kind of decision, but I know he is not happy with what is going on. I made up a document at his request and signed it on his behalf with his authorization until I can afford to get up to MO. to get him and have him sign it himself. Is this legal by any stand point? What can I do to help him lift her D.P.O.A. other than hiring lawyers that I can't afford in the first place. I am his only child and we are close. I am so distressed over all of this. I feel like my hands are tied.

Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

It is difficult to know what your options may be without knowing a few more facts, but here are some possibilities.

First of all, if your father completed the POA before he and his ex-wife divorced, there's a good chance it is no longer valid. Under Missouri law, a spouse named as an agent is no longer empowered to act after a divorce. (See this legal provision at www.moga.mo.gov/statutes/C400-499/4040000717.HTM.)

However, it is also possible that your father finalized a special power of attorney that would allow him to name an ex-wife, while acknowledging the relationship. Missouri law also allows for this.

Even if the POA is valid, however, the ex-wife is empowered only to manage his property and money only in his best interests, not her own. You or another person could go to court and demand a detailed accounting of how the money is being spent.

If the attending doctors are saying that your father is not mentally competent to make a power of attorney, then that may be the bottom line. To make a legal POA, he must be able to understand what he is doing by making the document"”and also understand what it means.

If he does have the required mental capacity, then he should be able to get help securing the required documents through an ombudsman, if he is currently a resident in a care facility. If so, the facility should be willing to give you the ombudsman's contact information over the phone. The ombudsman may also be able to provide some advice about how to proceed, since he or she may have visited your father and may be aware of his needs and mental state.

Unfortunately, the document you made on your own does not likely have any legal effect. Only the person for whom an agent is being appointed can make and finalize a POA"”and again, that person must have the required legal capacity.

Another possible option would be to have an adult guardian or conservator appointed to manage your father's finances for him. This may be the only approach if your father does not have the required mental capacity. Some local probate or superior courts offer good guidance about how to get such protection in place; others are very minimal. In depends on exactly what court oversees the procedure.

While it is not what you want to hear, there are so many complications in the situation you describe"”the type of document the ex-wife is relying upon, your father's mental competence, the possibility of a conservatorship, your distance from him"”that it may be wise to get an attorney involved to sort things out.

Ask the ombudsman if he or she knows of sources for experienced and affordable help in the area. You might also contact the bar association in your father's area to see whether it has any practitioners who offer free or low-cost help in elder law.