Just a long rant.

My younger brother, age 64, had a stroke about a dozen years ago. His speech, reading and writing as well as his right side are not working much anymore but his mind is otherwise fairly sharp. He was a part owner of a business that was sold in the not-too-distant past and made a nice chunk of change (he was making $200k+ in his business in the mid-90's) although over the last 10 years or so he was just getting by on social security disability. With this windfall $$$, his wife put him in an augmented assisted living home. Nice place. He went in in late October '15 and hasn't left since - not for one minute. He had given his wife power of attorney (POE) a few years ago and she is keeping him captive within the facility. Nobody is allowed to take him out. She visits very often, perhaps 6 days a week. I visit several days a week (it's a 49 mile drive each way).

He is desperate to get out. He has occasionally banged his cane on the locked exterior door although he had always been temperamentally very low-key but his frustration is growing. He wants to end the POE but needs a notary public to notarize the form. And the notary public needs a government photo ID. But his wife has his ID hidden away and is in no mood to let him from under her thumb (there was some spousal abuse by her on him before his stroke; he had our other brother come take his hunting rifle away because she threatened to shoot him. Other things, too). No ID, no notary, no ending the POE, no getting out. And neither he (nor I) can get another ID for him because he has to make a personal appearance at the DMV to request a replacement. His wife has convinced the facility (private, very nice) that he is too irrational to get out because of his attacks on the door and other displays of frustration. She writes the checks. The facility suggested a care conference and his wife refused.

One way to get around the ID is if the notary knows him personally. But there is no one who knows him who is a notary - my siblings and I have been working on this for weeks. His accountant was our best hope and he isn't a notary nor are any of his employees. I have seen two attorneys and will be seeing a third tomorrow to try to find a way for him to get out, even if just for a couple of hours shopping and dining and getting that ID. The one tomorrow specializes in POE, guardianship and conservatorships. I have another attorney who specializes in elder care law that I am awaiting a callback. The attorneys have quoted me fees and expenses of $60k for them to fight to get him out but they don't think I would prevail over his wife. And I don't have $60k (yes, I know I just bought a used car, the third this century for three drivers).

He doesn't have the communications skills to convince the facility to let him have an attorney nor access the courts. I cannot do it for him and even if I tried his wife would ban me. The attorneys I have contacted can only represent me unless he requests their services. And even though he can afford an attorney, these attorneys have told me they cannot accept money from him if he later proves incompetent (they would have to pay back any fees he paid them). Again, I cannot afford the fees only to have him (me?) lose.

His one possible ace in the hole is that if he files for divorce the POE ends. Likely that would also require the services of a notary public... And he doesn't want to file for divorce anyway; I've asked him.

Anyway, he is now on his best behavior. I keep him posted the best I can but his wife shows up a few minutes after I do because the staff has instructions to call her when he has us as visitors. Because of his slow communication skills this gives us very little time to brainstorm.

It's a mess.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Long shot--did he do personal business at a bank? They will have a notary and if he had a good relationship one might be willing to go out there during lunch.

It isn't that difficult to become a notary public...

[notary.sos.state.mn.us]

I'd imagine $120 and a form and you should be good to go.

---

C(-)ris
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Quote
C(-)ris
It isn't that difficult to become a notary public...

[notary.sos.state.mn.us]

I'd imagine $120 and a form and you should be good to go.

Speedy is to intelligent...
Every time I've had to deal with a @#$%& Notary, they've been the stupidest, most petty, arrogant pricks I've ever had to deal with, just to get a @#$%& form signed...

---

Paul F.
-----
A sword never kills anybody; it is a tool in the killer's hand. - Lucius Annaeus Seneca c. 5 BC - 65 AD
----
Good is the enemy of Excellent. Talent is not necessary for Excellence.
Persistence is necessary for Excellence. And Persistence is a Decision.
--

--

--
Eureka, CA

A bit drastic and not thought out but here goes...

Call the cops, when they show up he explains he is being held against his will. If they spring him, fine. If they aren't going to spring him, he hits one and gets arrested. That gets him out and access to a judge and attorney.

Like I said, I really haven't thought this out too far.

---

“No persons are more frequently wrong, than those who will not admit they are wrong.” -- François de La Rochefoucauld

"Those who cannot accept the past are condemned to revise it." -- Geo. Mathias

The German word for contraceptive is “Schwangerschaftsverhütungsmittel”. By the time you finished saying that, it’s too late

Quote
C(-)ris
It isn't that difficult to become a notary public...

[notary.sos.state.mn.us]

I'd imagine $120 and a form and you should be good to go.

This is what I was thinking. Just have someone who knows him become a notary

---

Roswell, GA (Atlanta suburb)

If his mind is sharp but his writing and vocal capabilities prevent him from communicating this sharpness, can he peck out sentences on an iPad? It may be slow going but if he could tap out his thoughts it may go a long way to prove he is not incompetent.

Consider contacting your local agency on aging. You might find resources or a referral that can help your brother.

A few thoughts:

1. If his ability to communicate is as degraded as you've described - "speech, reading and writing...are not working much anymore" - how do you establish that "his mind is otherwise fairly sharp"; what are the indications?

2. You say "His wife has convinced the facility (private, very nice) that he is too irrational to get out because of his attacks on the door and other displays of frustration." If this place is as upscale as you describe, it should be staffed with professionals who would have the skills and experience to know for themselves if he was, in fact, "too irrational" and they wouldn't be swayed by his wife if he were not. Have you spoken about your concerns with them? What evidence of his capabilities do you have that the staff are incapable of seeing?

3. If his ability to read isn't impeded, have "yes-or-no" questions written down for him to respond to before you see him. Have a doctor or nurse present while he responds to them.

[elderjusticemn.org]
[elderjusticemn.org]
(You've probably done this already)

Contact the police, at least to make some free, outside contact (spread the word, utilize your tax dollars).

Contact the local media and see if they have interest to do some of the work for you.

Sorry to hear about this, makes me also frustrated and mad just thinking about the situation.

---

Have you checked with ANY court yet? If you shop around enough (and have anything close to probable cause), I expect you'll find one that will issue a writ of Habeus Corpus which will direct the facility to deliver your brother to the issuing judge. As already mentioned, prep your brother beforehand so that he doesn't look like a complete fool once he's in front of a judge. You and your brother need to get this right the first time. Make sure the facility doesn't dope him up just before they have to deliver him to court. Have you made any video recordings showing him at his best? What other witnesses can testify on his behalf?

I don't really know anything about the elder care / legal system avenues.

But becoming a Notary is easy and relatively inexpensive. You could pay someone who knows him to become a Notary.



I will add one other thought... I didn't think a POA could override the wishes of someone who is competent. And I would think competency could be evaluated separately from communication deficiencies.

Quote
AllGold
And I would think competency could be evaluated separately from communication deficiencies.

Bro may have willingly signed over POA at the time.
Competency is evaluated by a psychologist, and yes, they are normally pretty good at working around communicative barriers, and tend to be fairly hesitant to declare someone not competent.
Sounds like Speedy has to tread lightly though, at the risk of being shut out completely.

Quote
Michael
Long shot--did he do personal business at a bank? They will have a notary and if he had a good relationship one might be willing to go out there during lunch.

Not in the last dozen years since his stroke.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Quote
C(-)ris
It isn't that difficult to become a notary public...

[notary.sos.state.mn.us]

I'd imagine $120 and a form and you should be good to go.

We have investigated that and it takes six months and it should not be someone who might benefit from the notarization.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Quote
Paul F.

Quote
C(-)ris
It isn't that difficult to become a notary public...

[notary.sos.state.mn.us]

I'd imagine $120 and a form and you should be good to go.

Speedy is to intelligent...
Every time I've had to deal with a @#$%& Notary, they've been the stupidest, most petty, arrogant pricks I've ever had to deal with, just to get a @#$%& form signed...

Notaries are held to ethical standards. According to one attorney, we will need to convince a notary that my brother is capable of knowing what he is signing. I have nothing against the notaries, just my SIL who is evil. She actually wanted to "return" five children they adopted because they were "too much trouble." My brother rejected her entreaties.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Quote
Ombligo
A bit drastic and not thought out but here goes...

Call the cops, when they show up he explains he is being held against his will. If they spring him, fine. If they aren't going to spring him, he hits one and gets arrested. That gets him out and access to a judge and attorney.

Like I said, I really haven't thought this out too far.

He wouldn't do that. But in the past he has begged for police when he got free from his own home but if you can't speak and your wife seems nice and convincing that he is unsound, you're screwed once the police sho up.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Six months? Really?

I'm skeptical but maybe it's the difference of MD to MN. The college where I worked thought it would be nice to have a notary around and one of the people in accounting became one. A friend of mine who owns a bar thought it would be handy for the neighborhood to have a notary so she became one. My brother thought he might be able to make a few bucks on the side so he became one.

---

Quote
Pam
If his mind is sharp but his writing and vocal capabilities prevent him from communicating this sharpness, can he peck out sentences on an iPad? It may be slow going but if he could tap out his thoughts it may go a long way to prove he is not incompetent.

He can but it is very difficult. He really scrambles his typing. He tries this for his phone calls because his wife limits him to two fifteen minute phone calls each week and they must be scripted so that she can read them. The staff goes along with this.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Quote
TL
Consider contacting your local agency on aging. You might find resources or a referral that can help your brother.

I haven't but I am waiting for a callback from an elder care attorney.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Quote
Speedy

Quote
C(-)ris
It isn't that difficult to become a notary public...

[notary.sos.state.mn.us]

I'd imagine $120 and a form and you should be good to go.

We have investigated that and it takes six months and it should not be someone who might benefit from the notarization.

Six months?! That's ridiculous. In my state it's almost instant. The only thing that takes time is waiting for your stamp to arrive after you order it (which has nothing to do with state or county offices).



Edited 1 time(s). Last edit at 04/04/2016 10:14PM by AllGold.

Quote
DeusxMac
A few thoughts:

1. If his ability to communicate is as degraded as you've described - "speech, reading and writing...are not working much anymore" - how do you establish that "his mind is otherwise fairly sharp"; what are the indications?

2. You say "His wife has convinced the facility (private, very nice) that he is too irrational to get out because of his attacks on the door and other displays of frustration." If this place is as upscale as you describe, it should be staffed with professionals who would have the skills and experience to know for themselves if he was, in fact, "too irrational" and they wouldn't be swayed by his wife if he were not. Have you spoken about your concerns with them? What evidence of his capabilities do you have that the staff are incapable of seeing?

3. If his ability to read isn't impeded, have "yes-or-no" questions written down for him to respond to before you see him. Have a doctor or nurse present while he responds to them.

1) We laugh about old times when we were kids. We have great conversations based on his yeses and noes. Gesturing communicates a lot.

2) The staff is bound by HIPAA. They will not speak to me about him although I can make my case but if it gets back to his wife I'll be banned from his life. This has already happened to my sister.

3) The doctors are convinced he is not lucid because of his attempts to get out.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.



Edited 1 time(s). Last edit at 04/04/2016 10:18PM by Speedy.

Quote
Black
[elderjusticemn.org]
[elderjusticemn.org]
(You've probably done this already)

The first link doesn't apply as she has him in a nice facility.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Quote
onthedownlow
Contact the police, at least to make some free, outside contact (spread the word, utilize your tax dollars).

Contact the local media and see if they have interest to do some of the work for you.

Sorry to hear about this, makes me also frustrated and mad just thinking about the situation.

Then she will ban me. And the police will put more stock in the professional staff at the facility.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Quote
testcase
Have you checked with ANY court yet? If you shop around enough (and have anything close to probable cause), I expect you'll find one that will issue a writ of Habeus Corpus which will direct the facility to deliver your brother to the issuing judge. As already mentioned, prep your brother beforehand so that he doesn't look like a complete fool once he's in front of a judge. You and your brother need to get this right the first time. Make sure the facility doesn't dope him up just before they have to deliver him to court. Have you made any video recordings showing him at his best? What other witnesses can testify on his behalf?

I have not made any video. The attorneys have told me that my brother (and I) would be unlikely to win in court. Battling experts tend to be prohibitively expensive and his wife will be given the edge by virtue of their being married.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Quote
AllGold
I don't really know anything about the elder care / legal system avenues.

But becoming a Notary is easy and relatively inexpensive. You could pay someone who knows him to become a Notary.



I will add one other thought... I didn't think a POA could override the wishes of someone who is competent. And I would think competency could be evaluated separately from communication deficiencies.

You are right, a competent person can revoke a POE. I have the forms, now I need the notary.

My sister and I discussed getting my son to become a notary but my son may be too closely involved. But we may try to find someone else. We are impatient.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Quote
Black

Quote
AllGold
And I would think competency could be evaluated separately from communication deficiencies.

Bro may have willingly signed over POA at the time.
Competency is evaluated by a psychologist, and yes, they are normally pretty good at working around communicative barriers, and tend to be fairly hesitant to declare someone not competent.
Sounds like Speedy has to tread lightly though, at the risk of being shut out completely.

His wife has the backing of a neuropsychologist. But in my experience, a lot of what a busy physician sees is heavily influenced by the caregiver.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Quote
$tevie
Six months? Really?

I'm skeptical but maybe it's the difference of MD to MN. The college where I worked thought it would be nice to have a notary around and one of the people in accounting became one. A friend of mine who owns a bar thought it would be handy for the neighborhood to have a notary so she became one. My brother thought he might be able to make a few bucks on the side so he became one.

That is what a notary at my bank told me. From making an application to getting a stamp can take six months.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

Thanks to everybody for their advice and empathy.

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.

What about having him apply for a passport via mail? You can take the required photos yourself. Should be doable.

---

It is what it is.

Quote
N-OS X-tasy!
What about having him apply for a passport via mail? You can take the required photos yourself. Should be doable.

Interesting thought. I haven't investigated getting a passport because it seems like that should be more difficult than that. I got my passport years ago and easily renewed. I'll check it out!

Edit: Getting a passport will not work.

[travel.state.gov]

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.



Edited 1 time(s). Last edit at 04/04/2016 11:23PM by Speedy.

Having him sign a medical release form so that you can talk to his doctors and the facility does not require a notary. (At lease I've never seen a form that requires one.) The facility should have them on hand.

I'd also consider finding a doctor who is on your/his side, who is independent of the facility, who'd be willing to help - maybe go in to see him one time, and get that person's name on the release form as well. If nothing else, this might give you an unbiased medical view of where he stands. It might not help in dealing with his wife, but it might when you are talking to the facility. I know this would be hard to do - it's effectively asking a doctor to do a house call, and that's unheard of these days. But one of the elder support agencies might be able to recommend someone.


Applying for a passport will require some other form of ID, such as a birth certificate. If you can't get his state ID, you probably won't be able to get that either. I imagine ordering a new birth certificate would also require a notarized form.


This situation reminds me of the Apple autism video that was posted on the forum recently. Kid found that he could write his thoughts on an iPad and have the iPad read it out - first time in his life he'd been able to "talk". Awful to be trapped inside yourself.


Good luck.

- Winston

---

------------------------
Be seeing you.

His wife would have me banned if I tried this. The POE makes what she says the same as though he were saying it.
I have to go in with rock-solid action on the first try, I won't get a second chance.

Quote
Winston
Having him sign a medical release form so that you can talk to his doctors and the facility does not require a notary. (At lease I've never seen a form that requires one.) The facility should have them on hand.

I'd also consider finding a doctor who is on your/his side, who is independent of the facility, who'd be willing to help - maybe go in to see him one time, and get that person's name on the release form as well. If nothing else, this might give you an unbiased medical view of where he stands. It might not help in dealing with his wife, but it might when you are talking to the facility. I know this would be hard to do - it's effectively asking a doctor to do a house call, and that's unheard of these days. But one of the elder support agencies might be able to recommend someone.


Applying for a passport will require some other form of ID, such as a birth certificate. If you can't get his state ID, you probably won't be able to get that either. I imagine ordering a new birth certificate would also require a notarized form.


This situation reminds me of the Apple autism video that was posted on the forum recently. Kid found that he could write his thoughts on an iPad and have the iPad read it out - first time in his life he'd been able to "talk". Awful to be trapped inside yourself.


Good luck.

- Winston

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.



Edited 1 time(s). Last edit at 04/04/2016 11:26PM by Speedy.

Divorce her and be done with it. If your brother does not see how she is keeping him captive and his own siblings at arms' length, then, I'd have to wonder at his mental capacity.

Oh, and those yeses and nos and gestures...well, that's your impression and you may be projecting your hopes and biases onto them.

Ask one of the attorneys if there is an alternate way for him to be identified to a notary - such as having a couple of acquaintances (non-family members) come at the same time as the notary and swear to who he is. If all the paperwork is set up ahead of time, the actual signing and notarizing should only take a few minutes.

---

------------------------
Be seeing you.

Also, think about the consequences of him being essentially incapacitated, and his wife having control over the financial assets.

There are normally two kinds of documents: a medical power of attorney, that allows someone else to make medical decisions if you are unable to, and a financial power of attorney that allows control over financial assets. The former only applies if you can't act on your own. The latter allows someone to act in your place at all times.

If his doctor thinks he can't make his own medical decisions, then I think that invokes the medical authority. The facility may, however, have a committee or board that has to rule on this if it's contested by him. The state probably has rules on how this has to work.

If you do get the financial power removed by his revoking it, who will take control over his assets from his wife, if that's what's required to continue to take care of him? How will that happen? What if all of his assets are in a joint name?

And who would represent him if his wife chooses to fight the revocation of the POE in court? How would his side get paid for?

Seems like there are a lot of potential complications.

---

------------------------
Be seeing you.

Playing devil's advocate here, there is nothing to show ill intent on the part of the wife.

- He is in a good, private care facility in which the wife can't abuse him even if she wanted to.
- The wife visits up to six times a week! It's not as if he was abandoned beneath a bridge somewhere and she took off to Cancun.
- Both wife and staff say (or they agree) that he is irrational and a potential threat to both himself and others.
- The patient is unable to communicate clearly in a rational manner.
- The patient is supposedly aware that if he divorces the wife he can lift the POE but doesn't.

All this versus the say so of relatives? Not a very strong case at all.

You should invest in consulting a lawyer who specializes in elder care issues. There are so many issues just beyond the notary public issue that need to be checked into. It is penny-wise and pound foolish to do anything less.

I am not an expert on the issue, but it would seem that you should be able to get a court mandated competency hearing if you can convince the authorities that his wife is holding him against his express wishes.

How exactly to go about that, I have no idea...

But I'm not getting why is she so adamant that he NEVER leave the facility? What is her end game here?

It is all very confusing. I am an attorney and a notary, and in this state, we wouldn't handle any of this like that. I would call an attorney there that is a member of NAELA. Your brother is the client and that does cause problems for them ethically dealing directly with you, so that is not an insignificant barrier.

[www.naela.org]…

I am not admitted in MN, so don't know anything about the law there, but at a glance the revocation of a POA law does not require it to be notarized, if your brother signs. Can he not sign? The health care advance directive would be another separate form possibly (and a different law).

[www.revisor.leg.state.mn.us]

You may want to try to call the Senior Legal Hotline in MN. I am not sure how they operate or if they exist, but the national back up center has them listed so hopefully that is accurate. In the end, the entire mess is likely headed to a fight over a contested guardianship. So with or without revoking the POA, you could probably initiate a guardianship, and they all these issues would get resolved there. that would cost money to hire an attorney most likely.

[www.legalhotlines.org]

Unless he signed a durable power of attorney, the POA ceases to be in effect if your brother is as incompetent as your sister-in-law claims him to be.

---

richorlin

She actually wanted to "return" five children they adopted because they were "too much trouble." My brother rejected her entreaties.

Sounds like she has some issues that might cast doubt on her mental state! Maybe something to use against her... Just sayin'.

---

You still here?

Disclaimer: This post is checked for correct spelling, punctuation, and grammar. Any attempts at humor are solely the responsibility of the author and bear no claim that any and all readers will approve or appreciate said attempt at humor.
My name is DP, and I approve this message.

"Show me the man and I’ll show you the crime."- Lavrentiy Beria

Quote
DP
She actually wanted to "return" five children they adopted because they were "too much trouble." My brother rejected her entreaties.

Sounds like she has some issues that might cast doubt on her mental state! Maybe something to use against her... Just sayin'.

Unless there is any documentation of an attempt at a "return" it is nothing more than emotionally biased inflammatory hearsay. Says more of the irrationality of the accuser than the accused.

---

The Phorum Wall keeps us safe from illegal characters and words
The doorstep to the temple of wisdom is the knowledge of one's own ignorance. -Benjamin Franklin
BOYCOTT YOPLAIT [www.noyoplait.com]
[soundcloud.com]

I know. But like I said, just sayin'...

---

You still here?

Disclaimer: This post is checked for correct spelling, punctuation, and grammar. Any attempts at humor are solely the responsibility of the author and bear no claim that any and all readers will approve or appreciate said attempt at humor.
My name is DP, and I approve this message.

"Show me the man and I’ll show you the crime."- Lavrentiy Beria

But I'm not getting why is she so adamant that he NEVER leave the facility?

Because outside of the facility, she doesn't have complete control.


What is her end game here?

I have no idea. Maybe she's at her end game- to just maintain the status quo.

At this point, it's entirely a civil matter, and police have no jurisdiction, and legal documentation exists to support that.

Unless something can be proven to show criminal activity, it's a problem for lawyers or the like, and not the police.

It's horrifically sad and tragic that Speedy's brother's disability and frustration at being trapped in the facility are being characterized as symptoms or indicators of irrationality.

Best of luck to you Speedy. This has to be an incredibly trying time and experience for you and your family.

---

I am that Masked Man.

All you can do, is all you can do.

There’s trouble — it's time to play the sound of my people.

Your boos mean nothing to me, I've seen what you cheer for.

Insisting on your rights without acknowledging your responsibilities isn’t freedom, it’s adolescence.

I've been to the edge of the map, and there be monsters.

We are a government of laws, not men.

Everybody counts or nobody counts.

When a good man is hurt,
all who would be called good
must suffer with him.

You and I have memories longer than the road that stretches out ahead.

There is no safety for honest men except
by believing all possible evil of evil men.

We don’t do focus groups. They just ensure that you don’t offend anyone, and produce bland inoffensive products. —Sir Jonathan Ive

An armed society is a polite society.
And hope is a lousy defense.

You make me pull, I'll put you down.

I *love* SIGs. It's Glocks I hate.

Quote
Speedy
That is what a notary at my bank told me. From making an application to getting a stamp can take six months.

Don't let one person put the kibosh on this idea. Go ahead and have someone apply. Worst case scenario: six months have passed, nothing has worked, but now whoever it is has become a notary and voila. Just pick a good choice, make sure they don't have any financial interest in this affair.

---

Edited 1 time(s). Last edit at 04/05/2016 05:22PM by $tevie.

Today an employee at the facility set up a meeting with me and my brother when I visited this morning. I left to meet the third attorney, his wife left and was not notified when I returned. The employee was given permission to speak with me by my brother and she told me the staff at the facility was hoping I was doing something! They thought I might be because I had strongly objected to them about the restrictive visiting hours set up by his wife. They can only hold care conferences and she has declined (barring obvious elder abuse). It is a nationwide corporation that the employee says pays very close attention to the bottom line (which corporation doesn't?) and his wife writes the checks. Very candid. We exchanged some interesting info. One thing that impressed me was that she said about half the people in this higher functioning memory care wing never leave because they refuse to return. So their families visit but don't ever take them out!

The latest attorney, who I was given a referral from the prior attorney because this latest one specializes in this type of case (albeit mostly contested guardianships), is preparing a letter to send to the state ombudsperson. She said my brother's rights are being violated right and left and this was the best way (read: cheapest) to proceed. She said both my SIL and the facility were violating his rights and that he can simply leave if he wants because there is no court involvement like there is in a guardianship and the power of attorney can simply be ignored by my brother because he is the one who gave it. She suggested I not press this point upon my return to the facility until after the ombudsperson has done their thing. She also suggested getting my brother to voluntarily become my ward which I think he might be willing to do. She made it clear any guardianship trumps any power of attorney. Also, the notary was a nothing thing and need not be bothered with at all since he can leave if he wants (again, unless a court gets involved).

I want to again thank everyone for their empathy and excellent advice.

Ps. This attorney said the notary was a nothing and not needed

---

Saint Cloud, Minnesota, where the weather is wonderful even when it isn't.



Edited 2 time(s). Last edit at 04/05/2016 11:29PM by Speedy.

Quote
Speedy
She also suggested getting my brother to voluntarily become my guardian which I think he might be willing to do.

I think you mean to get your brother to voluntarily allow you to become his guardian. He would be referred to as a "ward".

However, I don't think you can just name a guardian. Probably need to involve a court. In which case the wife could argue she should be the guardian.

[en.wikipedia.org]

Quote
Wikipedia
In most states, the process will start with a determination whether the alleged incapacitated person is actually incapacitated. There will often be an evidentiary hearing. Only if a finding of incapacity is made will the next step take place - whether a guardian is necessary, and if so who should the guardian be.

There can be a variety of levels or specificity of responsibility of guardianship. (See the Wikipedia article.) Also note that a guardian takes on significant legal responsibility: they are formally a fiduciary.

Some more overview from Minnesota Courts here:
[mncourts.gov]

---

------------------------
Be seeing you.

I also want to reiterate the differences between a medical (Health Care) power of attorney and a financial power of attorney.

A standard form I found for a Minnesota medical power of attorney says it's to:
[powerofattorney.com]
"Name another person to make health care decisions for me if I am unable to decide or speak for myself"

This only applies if the person in question cannot make their own decisions. And if a court hasn't declared your brother incompetent, and he wants to leave, I believe the attorney was right that the facility can't hold him there.

By contrast, a financial power of attorney allows the POA holder to act in the signors place at all times on financial matters as soon as it's signed.
[powerofattorney.com]

Makes sense that a guardianship would trump the POAs, as the court is replacing the ward legally with the guardian. At worst, the guardian would then have the right to reject previous POAs. But it may depend on what rights the court gives to the guardian.

Glad you found an attorney who seems to know this stuff.

---

------------------------
Be seeing you.