Does Mom still have first say if I'm the POA for Dad?

A fellow caregiver asked...

My Dad has ALzheimer's disease, Mom (his legal spouse) has all her mental faculties, albeit very stressed. There are several adult children. About 10 yrs ago both parents drew up General POA, Durable POA and Living wills (Ohio).

Both parents for the General POA gave me and a 2nd sibling equal POA. For the Living Wills and Durable POAs which spell out no heroics, just comfort care, gave one sibling primary responsibility and me secondary and for the other parent I have primary and the sibling has secondary.

This set up has caused a great deal of consternation between my siblings and parents. Dad was resuscitated and had a pacemaker inserted by the sibling who had primary Durable POA. At that time he had an Alzheimer's diagnosis, but was in about level 4; he is now at level 6.

After some extreme duress on my mother's part (her children bullying, trying to seek guardianship of Dad, claiming he was not cared for properly, claiming elder abuse, etc-all of which have been dismissed without any evidence) my mother went to an eldercare attorney and drew up new General POAs (The Living Wills and Durable POA are unchanged) naming me as primary for her, and a different sibling for secondary. The new General POA for Dad lists Mom as primary and me as secondary POA.

The siblings have disputed this change, accused the attorney of wrongdoing and generally do not accept this document.

My question: Regardless of which General POA, I am still on both documents. What rights does my mother have a spouse? If the more recent General POA is invalid as the siblings claim, does the legal spouse still have priority?

What are my rights/responsibilities as co-POA as established in Dad's original General POA?

Dad is now in a home, after trying a couple of years of in-home care. Since I have General POA in the first version(which states if he is not mentally competent) the two of us have POA over medical, financial, legal (including social security dealings. Does general POA trump Durable POA? Does the person on the Durable POA have the right to make decisions about medications, nursing home placements, therapy, hospitalizations that are not clearly endo of life issues?

Is the 2nd Generable POA naming our mother as the primary POA acceptable? Dad signed it, he was cognizant in the here and now, but his short term memory was not good. He was oriented to person, place and but not time at the time of signing.

Expert Answer

Steve Weisman hosts the nationally syndicated radio show A Touch of Grey, heard on more than 50 stations, including WABC in New York City and KRLA in Los Angeles. He is a practicing lawyer specializing in estate planning and is admitted to practice before the United States Supreme Court. He's a public speaker and commentator who has appeared on many radio and television shows throughout the country, and he's the legal editor of Talkers magazine, the preeminent trade publication of talk radio. His latest book is The Truth About Avoiding Scams.

This is quite complicated and unfortunately no one could begin to give you advice without reviewing the documents themselves and discussing the circumstances under which they were executed.

A Durable Power of Attorney is merely one that survives the incompetence of the maker. Until Durable Powers of Attorney laws were enacted, a power of attorney automatically became invalid at the incapacity of its maker.

Any power of attorney whether it is durable or not may be revoked by the maker if he or she is of sound mind.

Spouses do not generally have authority to make medical decisions legally on behalf of a spouse unless they are designated under an advance care directive such as a health care proxy or durable power of attorney for health care, depending on the particular state's laws.

I urge you to contact an elder law lawyer to help you first to determine what the various documents specifically provide as to your authority and to determine if the facts are such that the later documents are not legally viable. If that determination is made, the lawyer can advise you as to how to enforce your rights.