AT Lawyers: revoking a medical durable power of attorney while out of state?

[fuzzybabybunny]

My aunt has pancreatic cancer and is in her end stages. I think she signed papers in Washington state giving durable medical power of attorney to her husband should she become incapacitated.

Two weeks ago they took a trip to Hawaii (Honolulu). She collapsed in Honolulu, went to the ER, and got admitted to hospice. Her husband now has power of attorney when she entered into a coma.

Since then, she has recovered greatly. She has woken up, is talking, having normal conversation, a good amount of energy, etc. The doctors in Honolulu cleared her to fly back to Seattle on a private plane.

She really wants to go back to Seattle. Her husband forbids it and is not listening to medical advice. He's always been a control freak (his wife's words, not mine), but this time he actually has legal authority.

Does anyone know how to revoke a durable medical power of attorney once the principle gets better, while the principal is out of state? We need this done asap because a lot of his recent decisions have severely decreased my aunt's quality of life and even put her recovery in jeopardy.

We also think her husband wants her to die in Hawaii, because if she died in their house in Seattle the house value would go down, meaning he would be left with less. He's never worked a day in his life while he was married to my aunt.

 

[TheVrolok]

I'm somewhat confused, if she is awake and "normal," the power of attorney is meaningless. If she has capacity, her power of attorney doesn't make decisions for her.

 

[fuzzybabybunny]

I'm somewhat confused, if she is awake and "normal," the power of attorney is meaningless. If she has capacity, her power of attorney doesn't make decisions for her.

I think the power of attorney needs to be formally revoked? Would like some confirmation on this. A doctor might need to visit her and declare her sound of mind, a notary needs to witness it, copies of the revocation needs to be mailed to the hospice company, etc. At least that's what a hospice nurse told us.

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[TheVrolok]

Has she been declared incompetent by a judge?

If this is a traditional Healthcare power of attorney, durable or otherwise, it is not in effect when she is awake and appropriate.

If she's been declared incompetent by the courts, then, yes, she would need an evaluation for capacity and the courts would need to then declare her as having capacity.

 

[Slew Foot]

It the patient is alert and oriented and mentally capable, the DPOA is invalid

 

[fuzzybabybunny]

Interesting. Her husband has literally been going around to everyone and telling them "I have the power of attorney now. Everything needs to go through ME."

All the while she's awake, sitting, and lucid. She can't walk, stand, or go to the bathroom on her own, but otherwise she's fine.

Since she collapsed suddenly and went to the ER and hospice all in a matter of less than a week, it may be possible that he didn't get a formal court evaluation? Why would a formal court evaluation of her condition even be needed?

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[TheVrolok]

Interesting. Her husband has literally been going around to everyone and telling them "I have the power of attorney now. Everything needs to go through ME."

All the while she's awake, sitting, and lucid. She can't walk, stand, or go to the bathroom on her own, but otherwise she's fine.

Since she collapsed suddenly and went to the ER and hospice all in a matter of less than a week, it may be possible that he didn't get a formal court evaluation? Why would a formal court evaluation of her condition even be needed?

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In some cases guardianship needs to be appointed for long term (or potentially short term) decision making/custodianship. Many times in those cases a court is involved and a judge will declare a person incapable of making decisions and the guardian will then act in the assumed best interests of the person.

Doesn't sound like this is the case for your aunt. If this is simply a power of attorney, there is absolutely nothing preventing her from making decisions and your uncle can't stop.

She could demand discharge tonight and the hospital would have to release her. Holding her without her consent would be illegal, if she's "normal."

That said, if she's physically incapable of traveling (weak, etc) no one is required to help her.. So it could be essentially a hard stop.

 

[fuzzybabybunny]

In some cases guardianship needs to be appointed for long term (or potentially short term) decision making/custodianship. Many times in those cases a court is involved and a judge will declare a person incapable of making decisions and the guardian will then act in the assumed best interests of the person.

Doesn't sound like this is the case for your aunt. If this is simply a power of attorney, there is absolutely nothing preventing her from making decisions and your uncle can't stop.

She could demand discharge tonight and the hospital would have to release her. Holding her without her consent would be illegal, if she's "normal."

That said, if she's physically incapable of traveling (weak, etc) no one is required to help her.. So it could be essentially a hard stop.

Would I be correct in assuming that in the event that the power of attorney is not a *durable* one, all she would need to do is

1) verbally tell her husband that she wants to make decisions on her own behalf on all things from now on, and

2) call up the hospice company to state that she will now be making decisions on her own behalf?

Nothing to sign, just simple, clear statements like this?

The hospice employees are actually freaked out by her husband, to the point where they want to just kick my aunt out of their care for liability reasons. He's making decisions and telling them to do things against medical advice and medical sense, and the hospice people know they should go against his orders for the good of my aunt, but they're afraid of getting sued and losing their jobs if they disobey the person with power of attorney.

If the PoA was a Durable one, then a doctor would need to come in and evaluate her, right?

And if there never was a signed PoA document to begin with, her husband would naturally have inherited the PoA when she first got incapacitated, but she can just as easily get it back by doing #1 and #2 above?

 

[TheVrolok]

Would I be correct in assuming that in the event that the power of attorney is not a *durable* one, all she would need to do is

1) verbally tell her husband that she wants to make decisions on her own behalf on all things from now on, and

2) call up the hospice company to state that she will now be making decisions on her own behalf?

Nothing to sign, just simple, clear statements like this?

The hospice employees are actually freaked out by her husband, to the point where they want to just kick my aunt out of their care for liability reasons. He's making decisions and telling them to do things against medical advice and medical sense, and the hospice people know they should go against his orders for the good of my aunt, but they're afraid of getting sued and losing their jobs if they disobey the person with power of attorney.

If the PoA was a Durable one, then a doctor would need to come in and evaluate her, right?

And if there never was a signed PoA document to begin with, her husband would naturally have inherited the PoA when she first got incapacitated, but she can just as easily get it back by doing #1 and #2 above?

Durable just means that if incapacitated, it still stands. It has no bearing if she has capacity.

Your understanding in #1 and #2 is correct.

Provided she has capacity to make this decision (briefly meaning she understands her condition, she understands what happens if she stays, and she understands what the risks of leaving are) she is free to leave at her discretion.

These issues get really confusing for people, even Healthcare workers.

 

[fuzzybabybunny]

Durable just means that if incapacitated, it still stands. It has no bearing if she has capacity.

Your understanding in #1 and #2 is correct.

Provided she has capacity to make this decision (briefly meaning she understands her condition, she understands what happens if she stays, and she understands what the risks of leaving are) she is free to leave at her discretion.

These issues get really confusing for people, even Healthcare workers.

So.... I talked to her today and because she is at the end of her life, she doesn't want to create any more drama between her and her husband. Telling him straight up that she wants to make decisions for herself now would cause quite a stir, and she definitely doesn't want to call up the hospice folks and make a statement stating such. She just wants everyone to get along. She's dying.

In this case, what can be done?

Can we feel free to just disregard anything that he orders because my aunt is lucid right now?

He waves around his "I have power of attorney" stick all the time. Can we just ignore him and treat him as a blowhard who has no idea that he doesn't have a lick of PoA rights as long as his wife is lucid?

I was thinking that next time he tells me to stop doing something I will just ask my aunt what *she* wants in front of his face. And then take him aside and explain to *his* face that his PoA rights dissolved the moment his wife became lucid.

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[TheVrolok]

So.... I talked to her today and because she is at the end of her life, she doesn't want to create any more drama between her and her husband. Telling him straight up that she wants to make decisions for herself now would cause quite a stir, and she definitely doesn't want to call up the hospice folks and make a statement stating such. She just wants everyone to get along. She's dying.

In this case, what can be done?

Can we feel free to just disregard anything that he orders because my aunt is lucid right now?

He waves around his "I have power of attorney" stick all the time. Can we just ignore him and treat him as a blowhard who has no idea that he doesn't have a lick of PoA rights as long as his wife is lucid?

I was thinking that next time he tells me to stop doing something I will just ask my aunt what *she* wants in front of his face. And then take him aside and explain to *his* face that his PoA rights dissolved the moment his wife became lucid.

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Pretty much yeah. He doesn't have any power that your aunt isn't actively giving him. The tricky thing is if she doesn't want to start drama and is simply deferring her decisions to him, then he gets to make them. She needs to actually speak up and make her will known if it countermands his.

 

[Mike64]

In this case, what can be done?

Not much, if anything.The hospice staff should be ignoring the husband, to the point of threatening to exclude him from the premises if he doesn't stop his BS. But if they're not, and if your aunt isn't willing to even to speak to the hospice's staff social worker or patient advocate in private, there's not much you can do about any of this. I guess you could try to talk to one of those people, or maybe the facility's lawyer(s) yourself, but they may not be willing to discuss her "case" with a nephew at all unless your aunt OKs that. If you can speak to them, you can try to point out/get them to actually read the PoA and understand that now while she's no longer mentally incapacitated, her husband has no legal power to make decisions for her and that instead of expecting her to "opt out" of letting him make decisions for her, they should tell her husband to shove off until/unless his wife affirmatively "opts in" to his making the decisions while's she's legally capable of doing so. But people don't always do what "the law" says they should, and there's not really anything you can do if she's not incapacitated and also not willing to say anything to anyone (but you) at all...

 

[fuzzybabybunny]

Not much, if anything.The hospice staff should be ignoring the husband, to the point of threatening to exclude him from the premises if he doesn't stop his BS. But if they're not, and if your aunt isn't willing to even to speak to the hospice's staff social worker or patient advocate in private, there's not much you can do about any of this. I guess you could try to talk to one of those people, or maybe the facility's lawyer(s) yourself, but they may not be willing to discuss her "case" with a nephew at all unless your aunt OKs that. If you can speak to them, you can try to point out/get them to actually read the PoA and understand that now while she's no longer mentally incapacitated, her husband has no legal power to make decisions for her and that instead of expecting her to "opt out" of letting him make decisions for her, they should tell her husband to shove off until/unless his wife affirmatively "opts in" to his making the decisions while's she's legally capable of doing so. But people don't always do what "the law" says they should, and there's not really anything you can do if she's not incapacitated and also not willing to say anything to anyone (but you) at all...

Well, talked to the husband and now he's bringing his lawyer into the mix. He still firmly believes he gets to call all the shots with his durable medical power of attorney. But he won't let me see the paperwork nor will he let me discuss this matter with his lawyer.

Should I find a lawyer for myself in this case?

The timing of this is pretty bad now. My aunt's condition deteriorated today and she's now mentally more loopy, although she's still requesting certain foods and happy for certain friends to see her, all of which her husband is trying to limit or bar in some way. So we are definitely starting to get into territory where she is beginning to become mentally incapacitated again. She wouldn't be able to pay her own utility bill, for example, at this current stage.

But it sounds like I need to find a lawyer in Washington, the state where their residence address is. Where should I go to find one who deals with this kind of stuff?

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[Darwin333]

Durable just means that if incapacitated, it still stands. It has no bearing if she has capacity.

Your understanding in #1 and #2 is correct.

Provided she has capacity to make this decision (briefly meaning she understands her condition, she understands what happens if she stays, and she understands what the risks of leaving are) she is free to leave at her discretion.

These issues get really confusing for people, even Healthcare workers.

At the very least she should, and has every right to unless as previously stated a judge has declared her unfit, to make her own medical decisions. Regardless if that means leaving or simply the course of treatment she receives since the OP is saying that her husband is telling them to do stuff against medical advice.

How the hospice doesn't know that she has the legal power to make her own decisions concerning her medical care is beyond me.

 

[Mike64]

Should I find a lawyer for myself in this case?

If your uncle is being such an <expletive deleted>, absolutely. The very first thing you should do. There's really no other option, especially if your aunt is still unwilling to say anything to anyone on the hospice's staff. (And especially if the hospice staff continues to do what seems to taking the least path of resistance for convenience's sake.) As to her "loopiness", of whatever nature it might be, frankly, I don't think I should get into that at all. If that is or becomes a real issue, it's going to be a purely a "medical" issue/judgment in accordance with relevant local law and whatever medical standards apply, and I'm really not in any position to comment on any of that...

But it sounds like I need to find a lawyer in Washington, the state where their residence address is. Where should I go to find one who deals with this kind of stuff?

No, at least the first step is to find a lawyer in Hawaii. Hawaiian (state) law may ultimately refer back to Washington state law, but (a) I think that's unlikely, and (b) in any event, it's the Hawaiian legal system you'll be dealing with if push comes to shove. (More as an aside than anything else, as a (very) general matter, the state of domicile is usually only relevant to certain legal matters - usually involving property located in the state or taxation and other obligations to the state itself, but not to issues involving individuals' rights/liberties when they're physically present elsewhere.) And more specifically, since Hawaii had a very distinctly non-British/non-European socio-legal culture before it became a US state, there may be weirdnesses about local family-type law that I know absolutely nothing about, and that most other lawyers not actually licensed/practicing in Hawaii wouldn't know enough about to be useful except in an indirect advisory capacity.

And unfortunately, finding a good lawyer (like finding a good doctor, accountant, or any other professional) is always a bit of a crap-shoot. (Though as with those other professionals, the necessary "skill" of the lawyer, whether involving legal knowledge or communication/negotiating ability, will depend on how iffy the issue is. Also, what's needed on your/our aunt's part will depend somewhat on your uncle's lawyer. If your uncle doesn't in fact have the legal right to do what he's been doing, hopefully his lawyer will be trying to talk sense into him, rather than just trying to push through whatever-he-wants-because-he-wants-it. But you'll be much better off in the long run if you have your own lawyer to deal with him or her.

The first thing I'd suggest is doing a web search for a local bar association in Hawaii, and in particular a referral line or something like that. If you can't find something like that, check among the Hawaiian (state) court's website listings. It's very unlikely that you'll get an actual list of names from them, but they may be able to refer you to some sort of public referral service (bar association or maybe a state agency.) You can also check the state government's website(s) for elder law/or healthcare-related agencies. And if that turns up nothing, a general web search for some sort of (preferably non-to-for profit/public service-y type) organization or association that deals with elder law or healthcare issues. It's very late (or rather early) here so I'm not up to looking myself right now, but if you haven't found anything by the next time I log in, I'll poke around some and see if I can find anything that looks helpful.

Anyway, sorry this is turning into such a nightmare for your aunt and for you and that you can get things straightened out, or at least get a clear sense of what can and can't be done about it...

 

[lxskllr]

Send muscle to "talk" to him.

 

[Darwin333]

Is there any other financial motivation for him to be doing this than him thinking that the house might lose some value? Frankly I think that is kind of silly myself, I wouldn't see a house losing value if someone died in it from natural causes and from the sounds of things it seems more likely she would be in some sort of hospice, not the house, anyway.