Can I Take My Mother Out of a Nursing Home Against Her Agent's Wishes?
The answer will depend on the terms of the power of attorney as to when it becomes effective or ends, and whether the mother is mentally incapacitated. If the current power of attorney is effective despite the incapacity of the principal (mother), and the mother is no longer mentally competent to revoke or make a new power of attorney, a guardianship may be necessary. A power of attorney may only be revoked or modified by the principal. The agent has a fiduciary duty to carry out the intent of the document according to the principal’s wishes expressed therein. As long as a principal is mentally competent, s/he can revoke a power of attorney at any time.
The terms of the power of attorney govern the extent of the agent's authority. A power of attorney may be limted so that it only authorizes action to be taken for a specific transaction(s) or for a specified time period. It may also state that it only becomes effective upon incapacity. In such cases, the document may state something similar to, "I shall be considered disabled or incapacitated for purposes of this power of attorney if a physician certifies in writing at a date later than the date this power of attorney is executed that, based on the physician's medical examination of me, I am mentally incapable of managing my financial affairs. I authorize the physician who examines me for this purpose to disclose my physical or mental condition to another person for purposes of this power of attorney. A third party who accepts this power of attorney is fully protected from any action taken under this power of attorney that is based on the determination made by a physician of my disability or incapacity." We suggest you read the document carefully to determine is it is still in effect. If not, it may be necessary to create a guardianship if the mother lacks mental capacity to manage her own affairs.