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LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 7123
Experience:  Experienced Family Law Attorney
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This is a two part question. My mother is in a memory care

Customer Question

This is a two part question.
My mother is in a memory care facility she has dementia. She was attacked by one of the cliental - a man. He broke her arm. We filed a police report after learning that the facility hasn't a policy on predators. The assault is on video tape but the management and owners will not let us see the assault or reaction of the staff or if staff were nearby.
We are a large family. 10 siblings. We want her out of the facility but one sister who has Power of Attorney is dragging her feet and won't "approve" the new situation I have found that we all want. Until she has time. Or we do more homework. This week she has been vague as to whether she will make it a priority or not. It seems to me that even though she has Power of Attorney and or Durable Power of Attorney she is not acting in out mothers best interest to get her to a place that is safe. What can we do? Its been two weeks.
Submitted: 4 months ago.
Category: Family Law
Expert:  LegalGems replied 4 months ago.

I am very sorry to hear this; first adult protective services can be notified whenever there is physical abuse of a senior citizen.

As for the person with a power of attorney; they have a duty to act in the principal's best interest, and this authority can be revoked (by the court) for failure to take action when such action exposes the principal to physical, emotional or financial abuse.

When the principal is no longer able to make binding legal documents - ie to revoke the POA and assign a new one, the court may act on their behalf. So for example, if the agent is removed for breach of the fiduciary duty, and the document names a successor, that person can then act as the principal. If there is no provision for a successor, then the only way to make decisions for a person is either through a guardianship.

That information is here:

and here:

Since there are so many prospective individuals that may petition the court for appointment, if the POA does not name a successor, then if possible, the children would agree on which child is best situated to accurately act on behalf of the principal (taking into account time, location, concern). Then that person can petition the court for an emergency guardianship.

If one is concerned that there is imminent harm, then adult protective services may be the quickest way to respond; I would urge you to contact an attorney so they can apply for an emergency application re: either revocation of the power of attorney, or a petition for guardianship.

There are attorneys that specialize in elder care law, which deals with these issues more frequently than a general estate planning attorney, whose focus may be more on estate planning documents.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Expert:  LegalGems replied 4 months ago.

Checking in on the above- it appears you have not viewed this yet; please post any follow up questions when you review this and the question will reopen. Thank you.

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