Which takes precedence? A living will or power of attorney?

A fellow caregiver asked...

My sister-in-law has power of attorney over my sickly mother. I am the primary decision maker listed on her living will. I fear that my brother and my sister-in-law are not only taking advantage of my mother but neglecting her, as well, since she has had several visits to the emergency room. My sister-in-law refuses to furnish me with a copy of the POA. I need to know what takes precedence - a living will or a POA? Please let me know what can I do to find the answer to this question as it is a case of severe devastation for me and my family.

Expert Answer

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.

Your first concern seems to be power of attorney misuse. But first, a word about when the legal documents you mention take effect: As agent named in your mother’s living will, you are empowered to make medical decisions for her only if and when she is unable to express her own wishes due to a comatose condition, for example.

By the same token, your sister-in-law, as the agent named in your mother’s durable power of attorney for healthcare or finances, is usually only authorized to act if your mother becomes legally incompetent and unable to make her own decisions. A rare number of powers of attorney, however—usually financial ones—may enable an agent to act without this kind of incapacity. This is particularly likely if a person needs help with some administrative-type tasks, such as writing checks and paying bills.

So it is most likely that neither you nor your sister-in-law are legally authorized to make medical decisions for our mother if she is able to so that for herself. It would also be unusual—and potentially legally confusing—if your mother named you as her healthcare agent in one document and your sister-in-law as her agent in another. But that’s the legal side of things.

Your legitimate immediate concern is making sure your mother gets the care she needs. If your brother and sister-in-law have physical custody of your mother and you fear they are neglecting or even abusing her, you can discuss the matter anonymously with your local office of the National Center on Elder Abuse .

Rather than risk bad treatment for your mother, you might be able to sit down with your brother and sister-in-law and figure out a way to share the caretaking duties. Often these kind of family conflicts flare up when one person feels oppressed by the perceived responsibility and another feels shut out.

Finally, if it seems impossible to work out a compromise, consider making another person—perhaps a close friend or neighbor—legally responsible for the caretaking duties by authorizing him or her as your mother’s legal conservator or guardian.