My 35 year old son, whom is Autistic, resides in a nursing facility. His natural father is his legal guardian. Originally, both my ex-husband and his current wife were awarded Guardianship, under fraudulant terms: the papers were filed without my knowledge. I took them to court in 2002 and Guardianship was granted only to his natural father with me, his natural mother, as successive guardian. .I most recently found out she , my son's step-mother, is claiming to have Medical
Power of Attorney
. I checked his court records in the local courthouse and there is no record of this. It is my understanding a Judge has to approve this and it should be a part of my son's public record. Is the Medical Power of Attorney she claims to have control over, actually legal?
If an adult is disabled mentally, he does not have the capacity to execute a
power of attorney
. Only with a guardianship can someone secure medical or property control over an adult who is unable to appoint a power of attorney. Powers of attorney generally do not show up in court files.
Judy's right. A medical POA is a document one signs to give another the power to make medical decisions in the event the signer is incapacitated. Aging adults usually give an MPOA to their children. Spouses usually give MPOA's to each other. One must be of sound mind and without a mental disability to sign a medical POA.
You won't find a MPOA in court -- it's usually kept by the one being given the power
Why not ask your former husband to clarify on what facts his current wife makes her claim, and ask him to also clarify with your son's institution her status?
If your ex-husband was named Plenary Guardian for the Estate and Person of your son, and not as a limited guardian, then it is unlikely that the medical
power of attorney
is valid, though it is possible. Even though an individual has had a guardian appointed for him or her, even if it is a plenary guardianship of both the ward's estate and person that does not mean that the ward does not have the legal capacity to execute a Last Will, but I am unsure about a Power of Attorney. In that circumstance, I have always petitioned the Court to hire an independent attorney for the ward to assist in the preparation of the Last Will. That way I am able to establish the ward's capacity as part of the Court record, and by hiring an independent attorney to assist in the preparation of the Will it reduces any concerns that the ward is being subjected to undue influence. The reason why a ward might be able to execute a Last Will, but not a Power of Attorney has less to do with his or her capacity, but has to do with whether the ward has something to transfer. The Ward's rights to his or her property continue to exist, subject to the Court's supervision and direction, and so he or she potentially has a right which can be transferred to someone upon the ward's death. On the other hand, a power of attorney can only grant the agent the power the principal (the ward) actually possesses. However, if your ex-husband has been appointed as your son's Plenary Guardian for both his Estate and Person, your son no longer has the authority or power to make most if not all decisions on his own behalf. Since your son would no longer have any authority to make his own medical decisions, there is nothing to transfer to his step mother. So unless your son's guardianship is a limited guardianship, where he retains certain rights, then the document alleged to be a Medical Power of Attorney to the step-mother is not a valid document. If the step-mother attempts to exert any authority under that document, you should file a petition in the guardianship court to stop her. Good luck.
