My stepmother is in the nursing home and she did a prenupt and now her daughter is trying to enforce the prenupt. They are not divorcing and she is not dying. She is well enough to come home but her daughter does not want her to. She is the
power of attorney
and is doing everything to not let my father have anything to do with his wife.
They have been together for over 20 years and are very happy together.
This set of facts is very confusing. Why would her daughter have a
power of attorney
and not her husband? And how is it her daughter thinks a prenuptial agreement has anything to do with the daughter at all? It is an agreement made between a husband and wife before marriage.
The pre-marital is effective upon signing.
The pre-marital would most likely have nothing to say about the
daughters rights during the marriage concerning health care or visitation.
The daughter would need a
power of attorney
or health care attorney
to make decisions now.
I first would like to say that your question highlights the importance of everyone having their important legal documents up to date. Everyone adult, no matter how young, should have a Health Care
Power of Attorney
, Durable Power of Attorney, Last Will and Testament, and (optional) Advance Directive. These should be reviewed every five years and any time there is an important life event such as a birth, death, or remarriage.
Second, your situation also shows how, especially in today's blended families, it is doubly important for our legal documents to reflect what we truly want and perhaps not just what convention might seem to dictate. Third, the confusion and pain of your family shows how it's also best for the elder person themselves to actually have a meeting or clear understanding among all family members about what we want at the time when family members may be needed to step in and care for us.
It is truly a gift to our family and loved ones when we have all our documents prepared, up to date, everyone knows what Mom wants and what their responsibilities or roles will (or will not) be. If conversations clarifying what the elder does or does not want are too hard to manage on our own, then an elder mediator is a specially trained mediator who has skill at leading a conversation (or meeting), getting everyone on the same page, and documenting all points of agreement. Leave TV drama to TV! I suggest that things go more smoothly when there are no dramatic surprises and when everyone is on the same page.
That's my soapbox. I apologize to the writer of this question for using your question as a platform for that soapbox, but sadly these situations happen over and over. Lawyers like me get frustrated by clients who say they will take care of things later or who lack courage to face off against their adult children, who then never do it. Sooner or later, none of us can avoid these issues no matter how badly we want to. Especially when there are negative things that must be dealt with (such as conflict between the first family and the second), it's better to deal with it while we are still younger and stronger rather wait until we are older and feebler.
Now, to answer your question. The very first issue, in my mind, is to ask whether your step mother is in her right mind or not. If she is competent to make her own decisions, then her wishes control. It would be inappropriate for the person holding her Durable Power of Attorney to override the wishes of the Principal. She may need some help asserting her wishes, however. Most elder law attorneys will make house calls when needed. If your step mother wants or needs an attorney to help her assert her rights to be in control of her own life, then you can (and should) help her get one. Try to find an attorney who is a member of the National Academy of Elder Law Attorneys (NAELA).
I suggest that even after you call an attorney, you should also consider using a qualified elder mediator. Your step mother's daughter may have legitimate concerns, as do you and your father. At present, none of you are talking or listening to the "other side." A mediator can help de-escalate this conflict, perhaps making it possible for all of you to work together to address all the concerns, get all the issues aired, and reach family agreement. Really. Imagine how much better things would be for all of you, especially for your stepmother, if all of you were of a common mind and you were working as a team to support your stepmom, show your love for her, and support each other at this difficult time.
Going back to an attorney. If your stepmother is not competent to make decisions about what to do, you are either stuck with the documents she previously executed (and the results of those documents), or you get to decide whether to pursue a legal guardianship. You will definitely need an elder law attorney to help you sort this out and make these decisions.
A prenuptial agreement is a contract that can make terms of a marriage and a divorce. It can become effective when signed. It depends what the prenuptial agreement says when it will be affective, but cannot be affective when someone dies.
