This month, I am focusing my blog posts on questions I have received either over the phone or via my website (please, keep them coming!). I regularly receive questions about what to do when there is a sibling feud and a family member tells the other siblings that they are going to put mom or dad in a nursing home (or that sibling wants to control how mom and dad are spending their money, etc.). Usually, there is at least one family member who is upset by these statements. What are the kids’ rights where mom and dad are concerned?
As a child of your parent, you really have no “rights” over them as long as your parents have the ability to make their own decisions. As hard as it may be to realize, your parents are adults and they do have the right to make their own decisions, whether you agree with them or not. If a sibling (or other family member) is trying to make decisions for the parent, or you suspect they are taking advantage of the parent, this may be the time for you to step in.
If the parent has the ability and capacity to sign (or has already signed these documents) a durable power of attorney and health care surrogate designation, these documents may give you (or someone else) the authority to step in on the parent’s behalf. A durable power of attorney is a document that is signed by the parent and names someone as their agent (it could be the other spouse, an adult child, or anyone else) to make financial decisions for the parent. In Florida, this document, if signed after October 1, 2011, takes effect immediately and the agent has the authority to step into the shoes of the parent, whether the parent is incapacitated or not. If the document is signed prior to October 1, 2011, and it is a “springing” power of attorney, then it is not effective until the parent has been certified to be incapacitated by a physician.
A health care surrogate designation allows the parent to name someone to make health care decisions for them and access medical records. As of October 1, 2015, the health care surrogate designation can allow the health care surrogate to make decisions immediately or the parent can state that they do not wish for it to take effect until they are found by a doctor to be unable to provide informed consent.
If these documents are in place, this may allow an adult child to step in and help make decisions for their parents. However, even if these documents are in place, if one of the siblings is making wrong decisions or trying to take advantage of the parent, the other children may need to file for guardianship in order to control what is happening with mom or dad. A guardianship proceeding is not something that should be taken lightly – it is a court process in which someone petitions the court to find a person to be incapacitated and asks the court to take away the person’s rights (to contract, to marry, to decide where to live, etc.) and appoint a guardian to make all of those decisions. This should be the last resort of dealing with how to take care of mom or dad.
If you have questions about obtaining a durable power of attorney, healthcare surrogate or guardianship for a parent, please contact the Law Offices of Laurie E. Ohall, P.A.
