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Robert
Robert, Attorney
Category: Family Law
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I have been barred from seeing my mother in an assisted living

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I have been barred from seeing my mother in an assisted living facility in Hobbs, New Mexico. In fact most of her friends have been barred from seeing her by a woman who is not related to my mother at all. She and the assisted living facility use a durable power of attorney the woman has and that my mother signed as the authority to bar people from seeing her. How the woman got the POA is more involved, but my mother does not want me or her friends barred. No, at this point I do not want to pursue guardianship. I just want free access to my mother as do her friends.
Submitted: 2 years ago.
Category: Family Law
Expert:  Robert replied 2 years ago.
Hello and thank you for choosing JustAnswer!

You (your mother) can revoke a POA at any time as long as you are of sound mind. One way to revoke a POA is to tear up the document and all copies. Otherwise, the revocation must be in writing and signed in the
presence of a notary. If the original POA was recorded, then the revocation must also be recorded. A copy of the revocation should be given to banks, stockbrokers, your doctor, or anyone else who might be relying on the POA.

The individual your mother appointed as "attorney-in-fact" with the POA has responsibilities to act in the best interest of your mother. Various remedies may be available if a fiduciary duty was breached. Common actions for an abuse of a power of attorney, among others, include a petition for an accounting, claim of breach of fiduciary duty, theft, conversion, or a fraud charge. The Uniform Power of Attorney Act addresses the duties and liabilities of an "attorney-in-fact" in new mexico. A link to this Act follows:

http://law.justia.com/codes/new-mexico/2011/chapter46B/article1/

I suggest you review your rights under this New Mexico law and then determine which action to take (an attorney will be helpful here). Should you choose to retain your own local Attorney, as I recommend, then the following link will assist you in your search:

http://lawyers.findlaw.com/lawyer/practicestate/Probate-&-Estate-Administration/New-Mexico

This next link is good summary of the above Act:

http://www.bernco.gov/upload/images/probate/2007/090607.pdf

The next link will explain more about guardianship, conservatorship, and powers of attorney in New Mexico:

http://guardianshipalliancenm.org/docs/Guardianship-Full_Manual.pdf

The following link contains a form that you may be able to get your mother to sign that is designed to revoke her previously granted POA (assuming your mother is still of "sound mind"):

http://www.findlegalforms.com/product/new-mexico-revocation-of-power-of-attorney-general/

I hope this has helped. Please let me know if you need me to further clarify my answer and I will do my best to further clarify.

Thank you ,



Robert


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Customer: replied 2 years ago.
Thanks, XXXXX XXXXX answer does not get to my question/concern: how I and my friends are able to see her anytime we want. I think the POA is stretching her authority. In fact, I know she is. Do you say the only or best way is to simply have my mother revoke the POA--when the POA does not even given the woman the power she claims?
Expert:  Robert replied 2 years ago.
Thank you for your follow-up.

If the assisted living woman is using the POA to prevent you from seeing your mother, as you indicated in your initial question, then having your mother execute a valid revocation of the POA would eliminate her ability to do this.

You may also try insisting that you be allowed to see your mother. When they indicate that they will not let you simply ask them under what authority are they trying to prevent you from seeing your mother. If law enforcement is called then try to get an explanation before giving up but do not fight law enforcement.

However, if the POA is being used to prevent you from seeing your mother then I suggest you have your mother revoke the POA.

I hope this helps. Please let me know if you need me to clarify. Please click "Accept" so that I can be compensated for my work. I will be available to assist you even after you accept one or both of my answers.

Thank you,



Robert
Robert, Attorney
Category: Family Law
Satisfied Customers: 1412
Experience: I am a licensed Attorney.
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