How detailed can the decision-making of a durable power of attorney extend?

1 answer | Last updated: Oct 09, 2016
A fellow caregiver asked...

I had always heard that when it comes to money and control, things can change quickly in families, often revealing things you would never have imagined. Sadly, I now agree.

My question: to what level does durable power of attorney extend?

My sister (durable power of attorney/medical) is extending the definition to include ALL aspects of my mother's life, down to if Mom can come stay overnight at our homes or what the dog can eat (I kid you not). The moment my other sister or I take even basic common sense decisions, she explodes. (Case in point, my other sister brought Mom's chihuahua a meatball and my sister screamed that she was the one who must decide the dog's diet and had decided the dog shouldn't have meat.)

Mom is now in a nursing home, and the control factor has not ended. They allowed her to have her dog with her in the home (a blessing....she lives for that dog) My mother is in dementia at this point. Recently she wasn't feeling well, so my other sister told my mother she would take the dog home over night so she could get rest....Mom agreed. My sister saw her come in the next day with the dog (Mom did, indeed, get a good night's sleep) and started screaming that she had no right to make that type of decision....that she was the one who had to give her permission to do that.

My question is: Do we as family have rights as well? Does durable power of attorney extend to daily decisions, control of even the most mundane things? Do we have a right to take our mother out of the home for visits, even an overnight stay? (the nursing staff is aware of our desire and said there would be no problem if we simply checked with them before taking her out).....or do we have to ask our sister for what seems an exaggerated extention of her control and power?

As 'punishment' for our not asking her for even these littlest permissions, our sister did not issue us the annual 'Mom's gift' from the estate ($5,000). She has made it very clear that she wants to control EVERY aspect of Mom's care.

We find this distressing. There is no transparency. We do not know what powers she, indeed, has because she won't let us see the document. Yet it now appears that she is paying the nursing home each month directly from Mom's estate and keeping the long-term insurance re-embursements for herself as 'payment' for her services in handling Mom's affairs (This amounts to over $36,000 a year)

My sister and I feel helpless. What rights do family members have once one sibling has all the power? It may help to know that the decision giving her this power was not made on the basis of preference on the part of my parents....It was made years ago (before the Internet) when our parents felt she was the one living closest to them and could help them easier than my other sister and I.

Please advise us.


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.

Even without looking at the specifics of the documents naming your sister as agent for your mother, it seems clear that she is overreaching her powers. It is unlikely, for example, that her authority extends to that vegetarian Chihuahua"”a description which, I admit, was a welcome smilemaker in the midst of your description of your sad and frustrating situation.

The bottom line is that agents only have the power to act in the best interests of the person for whom the POA is written. So unless visits from you and your other sister have been in some way harmful to your mother "” they can and should continue.

It sounds as if you and your one sister (S#1) are on the same page"”and that must be some relief and comfort. And while it is likely that the POA sister has always been headstrong and perhaps a bit controlling or bossy, she may be becoming more that way now that she feels scared or angry or threatened by the changes in your mother's condition.

You and S#1 may be in the position of tending to two relationships. The first, and perhaps most important, is the one you have with your mother. Insist on your rights to visit the nursing home. You needn't get the POA sister's "permission" first.

But you might want to enlist the help of the nursing home administrators to help things go more smoothly, such as by helping to schedule visiting times. If nursing home personnel are reluctant or unable to assist you, contact the facility's ombudsman, who is trained and responsible for smoothing over problems with residents and family members. You should find contact information for that person posted in the facility"”or find it through the website of the national organization at www.ltcombudsman.org.

If you remain concerned about how she is handling your mother's financial matters, you can ask the probate court to require that the POA sister file an occasional accounting to make sure everything's on the up and up.

That brings to mind the second relationship"”the one you and S#1 may or may not have with the POA sister. If you are able to focus on and name specific problems and issues you have with her caregiving and control of your mother, perhaps all the siblings could try a session or two with an experienced family mediator or counselor. And"”a touchier issue: Is there anyone who can encourage your POA sister to get some help in a way she could hear the message?

In the meantime, try to listen to and honor your mother's wishes as much as possible"”even if it means giving that poor dog a bone.