Are safety issues covered by a healthcare power of attorney?

2 answers | Last updated: Oct 09, 2016
Medusa427 asked...

Mom gave my brother and I health care power of attorney. Her new husband is a bad driver. She even said she was scared last time she rode with him. Would "her safety", considering his bad driving, be covered under her health care power of attorney? In other words, would her safety, be considered a health care issue?

Expert Answers

Interesting and novel question. Would your (and your brother's) authority under your mother's health care power of attorney allow you to enforce concerns about her safety by preventing her from riding with her new husband? I doubt if there is any legal authority on this question. However, I'll say that it surely seems a reach for you and your brother to have that authority. First of all, unsafe driving by a spouse is far, very far, from the usual matters covered by a health care power of attorney"”matters like hospital care, doctors' treatments, medication and the like. Secondly, how could you enforce this authority, even assuming you could have it? Clearly you have no authority over your mother's new husband. If she continues to ride with him, what could you do to her? Order her to cease riding with him? And if she ignores that order, then what? Finally, remember that your mother has the power to revoke her durable power of attorney for health care at any time, or to limit it to certain specific matters.

I suggest that your wisest approach here would not be an attempt to rely on legal authority, but to use persuasion. What do you propose your mother should do if she choses not to ride with her new husband? Is that a solution she's willing to accept? How could it be made acceptable to her?

It remains true, for better or worse, that there is not a legal remedy for every difficult situation in life. This seems to be one of those instances.

Community Answers

Medusa427 answered...

Denis, thank you for the response. I have hired an attorney to look into this matter, and then into conservatorship. I think, no, I know I see both emotional and financial abuse, I have been studying it for over a year now, and consider myself a student of such. I have posted here, on this site, on other forums my concerns, examples of his abuse. I have contacted DMV to have him retested, don't know outcome, if any. I have contacted Social Services, don't know outcome, as they will not provide. They did go back for a second visit....

negligence n. failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not.

I would think this may fall under this definition.

In the DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS there is one paragraph entitled NOMINATION OF CONSERVATOR, and it states: ..."I hereby nominate as the co conservators of my person and my estate" brother, and me....

Now, since this is within, and a part of the DPOAFHCD, does it mean only related to health care decisions, itself, it appears to me, brother and I have conservatorhsip of her and her estate?

Yes, I've hired an attorney, so why am I asking any question here? Because a second opinion is always the best thing to do.

Now to answer your questions/statements: How can/could I stop him from driving her? I do not know, at this time.

...seems a reach for you and your brother to have that athority.. POA talks about "mental well-being", if she is scared to ride with him, and the 24/7 caregivers are scared to ride with him, does that not fall under: mental well-being?

...wisest approach here...not to rely on legal authority, but to use persuasion. He refuses to accept any input, he's hardheaded, stubborn, and thinks he is 100% correct about everything. He tried to get his attorney to revoke the POA. He "let" her fall six time in the past six years, until I stepped in last year and hired 24/7 care, the last fall almost killed her. He wanted to leave her in the recovery facility after the last fall because: "It was less expensive than 24/7 care". He wanted: "to stop at the bank on the way to the emergency room at the hospital." And on and on and on, his incompentence to properly care for her.

Thank You, Wayne