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Samuel II
Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 27010
Experience:  General practice of law with emphasis in family law.
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My concern is over a friends father. He is currently in the

Customer Question

My concern is over a friends father. He is currently in the hospital due to medical issues and is in and out of consciousness. His ex, legally still his wife, has inserted herself into the matter claiming she has the right to decision making since they are legally married, despite the fact she lives with her current boyfriend and has made a life with him for over a year. The father and wife do not speak; my friend would like a document stating she (his daughter) has the power to make decisions as she has no faith in her own mother. She would like to have her mother banned from the room where her father is, but primarily wants to ensure she doesn't do anything shady. Please advise.
Submitted: 1 year ago.
Category: Family Law
Expert:  Samuel II replied 1 year ago.


This is Samuel and I will ​discuss this and provide you information in this regard.

She is correct, if they are still married she is the next of kin and responsible for making decisions.

If she can get a doctor and a Notary in the room with him when he is conscious and the doctor can attest that he fully understands what is happening, she can have him sign a Medical Power of Attorney. With the POA she would then have the responsibility of making all medical decisions on his behalf.

Now, if the doctor will not attest that when he is conscious he is of sound mind, then she will need to go to court. And in that case, I suggest she consider at least consult with a local attorney to help draft the necessary documents.

Customer: replied 1 year ago.
Does this also allow for her to only allow certain individuals in the room? Her concern is to keep her mother as far away as possible.
Expert:  Samuel II replied 1 year ago.

Yes. She can keep the ex out of the room because she can state it is not in his best medical interest. But she also could seek a Durable Power of Attorney, which allows her to handle his finances, business and Medical situations. The same process would apply. She can consult with a local attorney to have the POA drafted and then show it to the Doctor and see if they will attest to the sound mind when he conscious.

Expert:  Samuel II replied 1 year ago.

4120. A natural person having the capacity to contract may execute
a power of attorney.

4121. A power of attorney is legally sufficient if all of the
following requirements are satisfied:
(a) The power of attorney contains the date of its execution.
(b) The power of attorney is signed either (1) by the principal or
(2) in the principal's name by another adult in the principal's
presence and at the principal's direction.
(c) The power of attorney is either (1) acknowledged before a
notary public or (2) signed by at least two witnesses who satisfy the
requirements of Section 4122.

4122. If the power of attorney is signed by witnesses, as provided
in Section 4121, the following requirements shall be satisfied:
(a) The witnesses shall be adults.
(b) The attorney-in-fact may not act as a witness.
(c) Each witness signing the power of attorney shall witness
either the signing of the instrument by the principal or the
principal's acknowledgment of the signature or the power of attorney.

Expert:  Samuel II replied 1 year ago.

4123. (a) In a power of attorney under this division, a principal
may grant authority to an attorney-in-fact to act on the principal's
behalf with respect to all lawful subjects and purposes or with
respect to one or more express subjects or purposes. The
attorney-in-fact may be granted authority with regard to the
principal's property, personal care, or any other matter.
(b) With regard to property matters, a power of attorney may grant
authority to make decisions concerning all or part of the principal'
s real and personal property, whether owned by the principal at the
time of the execution of the power of attorney or thereafter acquired
or whether located in this state or elsewhere, without the need for
a description of each item or parcel of property.
(c) With regard to personal care, a power of attorney may grant
authority to make decisions relating to the personal care of the
principal, including, but not limited to, determining where the
principal will live, providing meals, hiring household employees,
providing transportation, handling mail, and arranging recreation and

4124. A durable power of attorney is a power of attorney by which a
principal designates another person as attorney-in-fact in writing
and the power of attorney contains any of the following statements:
(a) "This power of attorney shall not be affected by subsequent
incapacity of the principal."
(b) "This power of attorney shall become effective upon the
incapacity of the principal."
(c) Similar words showing the intent of the principal that the
authority conferred shall be exercisable notwithstanding the
principal's subsequent incapacity.

Expert:  Samuel II replied 1 year ago.

Here is the LINK for the CA law on the POA But as I suggested earlier she should consider having a local attorney draft it for her. She will need the Doctor to Attest in writing the patient is in sound mind when conscious and also able to understand what he is signing. A Notary or Two Witnesses must be on the POA.

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