Can I stop my sibling from persuading Dad to change our power of attorney agreement?

A fellow caregiver asked...

My parents have been married almost 50 years this coming June. My mom had a major stroke which left her with severe brain damage. She is now in a rehab center and I am power of attorney after my father of both parents. My father is staying with my brother until my mom comes home and my brother is trying to persuade my father to take me off of power of attorney and put him on. Can my father legally do this? He will be 75 and has failing health. He has congestive heart failure and has a pacemaker and constantly drinks and has ended up in the ER after having seizures from drinking on top of he heart meds. I feel that my father is incompetent and incapable of caring for himself and my mother properly. De can't remember anything two minutes after you tell him something. He is an alcoholic and I want him to be labeled incompetent. What are my rights as next P.O.A???

Expert Answer

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.

From a legal standpoint, as alternate agent in a power of attorney, you're on the same footing as the Runner-Up in the Miss America Pageant. That is, you have no real rights or responsibilities unless the first agent is unable or unwilling to serve.

But from a practical position, it must seem impossible to sit back and let your father blow through money and careen through life. Your brother may be lobbying to become your father's agent now merely for practical convenience if they both live under the same roof, so consider whether that change might not be a good one"”or whether you and your brother might split the job: you acting as agent for one parent, he for the other.

Legally, your father is free to change the person named as agent in the power of attorney document as long as he is considered mentally competent"”that is, he can understand and appreciate the document and what it does. His alcoholism and bad health alone might not make him incompetent, but they may"”and that's where your focus needs to be.

You say you are the designated agent "for both parents" after your father. But he cannot act as his own agent in a power of attorney, so it is unclear whether he has made one for himself. If he has, and has named you as the agent, it is time to take a look at how and when the document takes effect. Most will specify, for example, that the agent is empowered once a doctor or sometimes two declare in writing that he or she is mental incompetent. If your father has a doctor, consider consulting with him or her for that diagnosis.

If a doctor declares your father to be incompetent, than he will no longer be legally entitled to serve as your mother's agent"”and it would seem most likely that you would then take over as agent for both of them.

No matter how the power of attorney spins out, it sounds as if you remain concerned that your father is unable to take care of himself, much less care for your mother, too.

Another alternative may be to ask the court to name you or another person as their legal guardian or conservator. This gives a person the right to manage another person's care and finances, much as an agent in a power of attorney can do. The main difference is that the court appoints someone to act rather than the person who ultimately needs the care. You can find out more about this process by searching for "probate court" and the name of your city or county along with the terms guardianship or conservatorship.