Can I initiate getting DPOA or health care proxy for my brother?

3 answers | Last updated: Oct 25, 2016
Bwitchd asked...

My brother was recently diagnosed with lung cancer. He is not married but has a "fiance" to whom he has been engaged for 11 years. She is dangerously ignorant when it comes to my brother's medical issues. Shortly after he was diagnosed he was discharged from the hospital and had a serious decline once he was home. He began having difficulty with his right side and was not feeling well at all. She did not get him back to the hospital for 3 days and come to find out he had suffered a stroke and a heart attack to add to his medical problems.

Is there a way to get his durable power of attorney or health care proxy? No one has it at this time and I am concerned that following his stroke although he can talk and function mentally that he cannot be considered of sound mind. I am one of 5 children and all of my siblings agree with me. Please answer ASAP; time is of the essence.

Expert Answers

Barbara Repa, a 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.

There are two possible complications with having you or one of your siblings appointed as your brother's health care proxy.

The first is that it's up to the person for whom the power of attorney will operate to choose the proxy and finalize the document appointing him or her to act. And so your brother might feel bound by obligation or love or need or stubbornness to choose his finance for the task if he did put a power of attorney into place.

And the second possible complication comes from your inference that your brother may not be of sound mind. The law requires a certain level of mental capacity for a person to execute a power of attorney in the first place: He or she must know what the document is and how and why it works. While many people retain this capacity after a stroke and heart attack, if your brother did not, then he can't execute a power of attorney.

But there may be other options you and your siblings could take to help ensure that your brother gets the care he needs.

While it's the workiest approach, you might first try a family meeting in which you emphasize your cares and concerns and brainstorm about possible ways to meet them. There is a real chance that the finance feels overwhelmed and scared at this point"”and may actually welcome the help and respite. Working together, you may be able to come up with a list of competent affordable helpers available from community resources"”church groups, daycare providers, homecare volunteers"”who will be able to pitch in. And getting the extra sets of eyeballs in the room with your brother may help give the rest of you siblings some peace of mind.

If the rift between your brother & fiancé and the rest of the sibs is too broad to cover in this way, then consider consulting a professional to come in and assess whether the care he is getting is adequate. A good first contact may be the Area Agency on Aging, which you can find by searching Even if your brother is not technically elderly, workers there should be well informed about what resources are available locally"”and should be willing to discuss the situation confidentially.

Finally, if you believe both that your brother lacks mental capacity and that he is receiving negligent or dangerous care, consider taking the more drastic step of having an adult guardian or conservator appointed to care for him. Such arrangements often take some time and money"”and may risk alienating your brother and his fiancé if they view the help as an intrusion. To find out requirements for a guardianship or conservatorship, check with the local probate court.

Community Answers

A fellow caregiver answered...

i have no answer but a question when spouses seperate and one has a stroke and this spouses's family does not inform the other spouse until months later and has not told the doctor of care that this ill spouse has a wife and that the doctor or nursing staff was not notified and the siblings take this spouse home to care for how in the world could this sibling get paid is this a fraud.i seriously need an answer this person has a living and able spouse.

The caregiver's voice answered...

Barbara Repa's response is quite thorough and compassionate--esp. about the fiancee being overwhelmed.

BwitchD, it may come to the point where you may have to petition the court to serve as guardian/conservator.

I am curious why your brother's fiancee has remained engaged for over a decade...this, in itself might be telling. Also, in some (all?) states a relationship (if they live together) for over 7 years may constitute a common-law marriage.