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Richard
Richard, Attorney
Category: Legal
Satisfied Customers: 45710
Experience:  Attorney with 29 years of experience.
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My 43 year old brother was admitted in the hopital on Feb 8th

Customer Question

My 43 year old brother was admitted in the hopital on Feb 8th and went into a drug induced coma to detox from alcohol, he was out for 23 days...while out of it, his wife died of h1n1 virus and he woke up with demintia, (she had no will)_.....I am his sister, 51, and have been layed off from a job, now seeking work, anyway, the daughter and brother of the wife won't let my brother go back home until we can find him a home. Also I have applied for emergency emergency gaurdianship and was granted such, but now 14 days later he is having better days, he has been in his right mind for the past four days now. The wife was the caretaker of my brother, financially and anything else..she took care of him...loved him...for 14 years....two questions...can they just kick him out of the family owned home without notice and do I need to continue with gaurdianship or just get a power of attorney? He is in and out and you never know when he will be out of it....he has serious health issues and has been told he only has about a year left. Now before the wife died, she did all the social security and medicaid paperwork, and I have found out it is pending.
Submitted: 1 year ago.
Category: Legal
Expert:  Richard replied 1 year ago.
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.


Good morning. I'm so sorry about your brother, but I can offer you a little hope in the response to your questions.

1) They cannot simply throw him out. With no lease, he is deemed an at will tenant and treated legally as a month to month tenant. As such, he is entitled to at least 30 days written notice to terminate that tenancy. Then, if he does not leave, the law does not allow the owners to forcibly evict him without obtaining an eviction order from a court. What that means is that if termination date comes and he does not move out, the owners cannot simply change the locks or throw his things out. Rather, what the owners have to do is to first deliver a 3-Day Notice to quit under Idaho law...which basically says he has 3 days to leave or face eviction. But, if he still hasn't left, the owners must then file a petition with the court for an eviction order. Depending upon the court's docket, it can take anywhere from about 15 days to a couple of months to get a hearing. Only when a judge has issued the eviction order can the owners have him evicted. That will buy him a good bit of time.

2) A Durable General Power of Attorney will give you the authorization to act on his behalf. If you need a template for this, let me know and I'll be happy to provide one for you.




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Customer: replied 1 year ago.


But we are in Georgia....not Idaho..and when he is having a dementia episode, will that durable power of attorney be enough to have medical, financial and all decision make abilities?

Expert:  Richard replied 1 year ago.
Thanks for following up and clarifying. In your box, it references that the applicable state is Idaho...that's why I provided the answer under Idaho law. The rules are basically the same in Georgia...the only difference is rather than a 3-day notice to quit, a 7-day notice to quit is required. Everything else would be the same.

The Durable General Power of Attorney would give the right and power to make all non-medical decisions. To make the medical decisions, you would also need a Durable Medical Power of Attorney. I can provide you a template for either or both. The difference between a POA and guardianship is that the former does not keep him from also making decisions on his own while the guardianship cuts off his ability to make decisions on his own.
Customer: replied 1 year ago.

I just found out the family has changed all the locks...


Can the police be called?


 


Just to clarify, the power of attorneys will be sufficant to handle my brothers business when needed? The guardianship that I have expires April 15,..,

Expert:  Richard replied 1 year ago.
That is an illegal eviction. Typically the police will not get involved with a court order. What you should do is file a petition with the court and ask for immediate help. The court will then likely issue an order preventing the eviction and you can take that to the police to gain entry. The court will also likely award you damages of the greater of $250.00 or his actual damages....which include room and board elsewhere while dispossessed, whichever is greater, plus court costs and attorneys' fees. Yes, the POA's will give you the authority to handle his business.
Customer: replied 1 year ago.

please send me the POA's and which one do I want to use? Last question, can I print or get these answers emailed to me?

Expert:  Richard replied 1 year ago.
You will want to use them both...one for financial and the other for medical. You should be able to either print these answers or copy and paste them into a Word document. Under my terms of service with JustAnswer, I can only provide information within this forum and we are not allowed to communicate in any way by email. I'm sorry.

Here are the two forms.....



DURABLE GENERAL POWER OF ATTORNEY


THE STATE OF_________ §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _______ §


THAT I, ____________, State of ________, hereby make, constitute and appoint _______________ as my true and lawful attorney in fact for me and in my name, place and stead, and for my use and benefit. My attorney in fact, hereinafter called attorney or attorney in fact, shall have the power:

1. To exercise, do, or perform any act, right, power, duty or obligation whatsoever that I now have or may acquire the legal right, power, or capacity to exercise, do, or perform in connection with, arising out of, or relating to any person, item, thing, transaction, business, property, real or personal, tangible or intangible, or matter whatsoever;

2. To ask, demand, sue for, recover, collect, receive, and hold and possess all such sums of money, debts, dues, bonds, notes, checks, drafts, accounts, deposits, legacies, bequests, devises, interests, dividends, stock certificates, certificates of deposit, annuities, pension and retirement benefits, insurance benefits and proceeds, documents of title, choses in action, personal and real property, intangible and tangible property and property rights, and demands whatsoever, liquidated or unliquidated, as are now, or shall hereafter become owned by, or due, owing, payable, or belonging to me or in which I have or may acquire an interest, and to have, use and take all lawful ways and means and legal and equitable remedies, procedures, and writs in my name for the collection and recovery thereof, and to compromise, settle, and agree for the same, and to make, execute and deliver for me and in my name all endorsements, acquittances, releases, receipts, or other sufficient discharges for the same;

3. To lease, purchase, exchange, and acquire, and to bargain, contract, and agree for the lease, purchase, exchange, and acquisition of, and to take, receive, and possess any real or personal property whatsoever, tangible or intangible, or interest therein, on such terms and conditions, and under such covenants, as said attorney in fact shall deem proper;

4. To improve, repair, maintain, manage, insure, rent, lease, sell, release, convey, subject to liens, mortgages, and hypothecate, and in any way or manner deal with all or any part of any real or personal property whatsoever, tangible or intangible, or any interest therein, which I now own or may hereafter acquire, for me and in my name, and under such terms and conditions, and under such covenants as said attorney shall deem proper;

5. To engage in and transact any and all lawful business of whatsoever nature or kind for me and in my name;

6. To sign, endorse, execute, acknowledge, deliver, receive and possess such applications, contracts, agreements, options, covenants, deeds, conveyances, trust deeds, security agreements, bills of sale, leases, mortgages, assignments, insurance policies, bills of lading, warehouse receipts, documents of title, bills, bonds, debentures, checks, drafts, bills of exchange, notes, stock certificates, proxies, warrants, commercial paper, receipts, withdrawal receipts and deposit instruments relating to accounts or deposits in, or certificates of deposit of, banks, savings and loan or other institutions or associations (including, but not limited to, the right to enter into any safe deposit box in which I may have an interest and to remove, and receipt therefor, any and all contents thereof), proofs of loss, evidences of debts, releases, and satisfaction of mortgages, judgments, liens, security agreements, and other debts and obligations, and such other instruments in writing of whatever kind and nature as may be necessary or proper in the exercise of the rights and powers herein granted; and

7. To make lifetime gifts of my property to persons other than my attorney or persons to whom my attorney owes a legal obligation of support. To assign and convey all or any part of the assets of my estate (consisting of any property, real, personal or mixed, of whatsoever kind and wheresoever located and whensoever acquired) into such revocable trust or trusts for my benefit for life with remainder at my death for the benefit of others as hereinafter provided, irrespective of whether said trust is now in existence or hereafter established. Specifically, my attorney is empowered to create such a revocable and amendable trust for my lifetime benefit with remainder to those persons as provided in the document in will form which I last signed prior to the creation of such trust by my attorney. My attorney may be the beneficiary and the trustee or co trustee of such trust in the same manner as provided in said document in will form. Provided, however, my said attorney shall have no power under this or any other paragraph of this document to deal in any way whatsoever with any policies of life insurance on the life of my attorney which are owned by me in whole or in part.

8. I authorize my attorney in fact to make disclaimers pursuant to _______ Probate Code or its successor act.

9. I grant to my said attorney in fact full power and authority to do and perform all and every act and thing whatsoever requisite, necessary, and proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as I might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that my said attorney in fact, or my attorney in fact's substitute or substitutes, shall lawfully do or cause to be done by virtue of this power of attorney and the rights and powers herein granted.

10. I agree that any third party who receives a copy of this document may act under it. The rights, powers, and authority of my attorney in fact to exercise any and all of the rights and powers herein granted shall commence and be in full force and effect from the execution date hereof, and shall remain in full force and effect until revocation hereof is recorded in the office of the County Clerk of _______ County, _______. Provided, however, that any revocation of the durable power of attorney is not effective as to a third party until the third party receives actual notice of the recorded revocation.

11. I hereby authorize my attorney in fact and any successor to indemnify and hold harmless any third party who accepts and acts under this power of attorney against any and all claims, demands, losses, damages, actions and causes of action, including expenses, costs and reasonable attorneys' fees which such third party may incur as a result of his reliance on this power of attorney. I agree to indemnify the third party for any claims that arise against the third party because of reliance on this power of attorney.

12. I hereby bind myself to indemnify and hold harmless my attorney in fact and any successor who shall so act against any and all claims, demands, losses, damages, actions and causes of action, including expenses, costs and reasonable attorneys' fees which my attorney in fact at any time may sustain or incur as a result of her carrying out the authority granted her in this power of attorney.

THIS POWER OF ATTORNEY SHALL NOT TERMINATE UPON MY DISABILITY OR INCOMPETENCY.

IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ____________, 2011, in the presence of the undersigned witnesses at my request.


_________________________________________
________________________


On the ____ day of ______________, 2011, _____________________ requested us, the undersigned witnesses, each being eighteen years of age or older, to act as witnesses to his signature on the foregoing Durable General Power of Attorney. We do hereunto subscribe our names as witnesses.


________________________________ _____________________________
Witness

________________________________ _____________________________
Printed or Typed Name of Witness Address


________________________________ _____________________________
Witness

________________________________ _____________________________
Printed or Typed Name of Witness Address


THE STATE OF ______ §
§
COUNTY OF ______ §

BEFORE ME, the undersigned, a Notary Public in and for said County and State, on this day personally appeared _____________________, known to me to be the person whose name is XXXXX XXXXX the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.

GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ___ day of _____________, 2011.


_________________________________________
NOTARY PUBLIC, STATE OF ___________




THE STATE OF _____ §
§
COUNTY OF _______ §

BEFORE ME, the undersigned, a Notary Public in and for said County and State, on this day personally appeared _________________________ and __________________________, known to me to be the persons whose names are XXXXX XXXXX the foregoing instrument, and acknowledged to me that each executed the same for the purposes and consideration therein expressed.


GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ___ day of _____________, 2011.


_________________________________________
NOTARY PUBLIC, STATE OF __________







INFORMATION CONCERNING THE MEDICAL
POWER OF ATTORNEY

THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:
Except to the extent you state otherwise, this document gives the person you name as your agent the authority to make any and all health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are no longer capable of making them yourself. Because “health care” means any treatment, service, or procedure to maintain, diagnose, or treat your physical or mental condition, your agent has the power to make a broad range of health care decisions for you. Your agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. Your agent may not consent to voluntary inpatient mental health services, convulsive treatment, psychosurgery, or abortion. A physician must comply with your agent’s instructions or allow you to be transferred to another physician.
Your agent’s authority begins when your doctor certifies that you lack the competence to make health care decisions.
Your agent is obligated to follow your instructions when making decisions on your behalf. Unless you state otherwise, your agent has the same authority to make decisions about your health care as you would have had.
It is important that you discuss this document with your physician or other health care provider before you sign it to make sure that you understand the nature and range of decisions that may be made on your behalf. If you do not have a physician, you should talk with someone else who is knowledgeable about these issues and can answer your questions. You do not need a lawyer’s assistance to complete this document, but if there is anything in this document that you do not understand, you should ask a lawyer to explain it to you.
The person you appoint as agent should be someone you know and trust. The person must be 18 years of age or older or a person under 18 years of age who has had the disabilities of minority removed. If you appoint your health or residential care provider (e.g., your physician or an employee of a home health agency, hospital, nursing home, or residential care home, other than a relative), that person has to choose between acting as your agent or as your health or residential care provider; the law does not permit a person to do both at the same time.
You should inform the person you appoint that you want the person to be your health care agent. You should discuss this document with your agent and your physician and give each a signed copy. You should indicate on the document itself the people and institutions who have signed copies. Your agent is not liable for health care decisions made in good faith on your behalf.
Even after you have signed this document, you have the right to make health care decisions for yourself as long as you are able to do so and treatment cannot be given to you or stopped over your objection. You have the right to revoke the authority granted to your agent by informing your agent or your health or residential care provider orally or in writing or by your execution of a subsequent medical power of attorney. Unless you state otherwise, your appointment of a spouse dissolves on divorce.
This document may not be changed or modified. If you want to make changes in the document, you must make an entirely new one.
You may wish to designate an alternate agent in the event that your agent is unwilling, unable, or ineligible to act as your agent. Any alternate agent you designate has the same authority to make health care decisions for you.
THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED IN THE PRESENCE OF TWO COMPETENT ADULT WITNESSES. THE FOLLOWING PERSONS MAY NOT ACT AS ONE OF THE WITNESSES:
(1) the person you have designated as your agent;
(2) a person related to you by blood or marriage;
(3) a person entitled to any part of your estate after your death under a will or codicil executed by you or by operation of law;
(4) your attending physician;
(5) an employee of your attending physician;
(6) an employee of a health care facility in which you are a patient if the employee is providing direct patient care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility; or
(7) a person who, at the time this power of attorney is executed, has a claim against any part of your estate after your death.

Signed on this _____ day of _______________, 2008, to confirm that I received this disclosure statement prior to execution of my Medical Power of Attorney and that I have read and understand it.


_________________________________________
[Principal]


MEDICAL POWER OF ATTORNEY
DESIGNATION OF HEALTH CARE AGENT.
I, [Principal], appoint:
Name: [Agent]

Address:

Phone:

as my agent to make any and all health care decisions for me, except to the extent I state otherwise in this document. This medical power of attorney takes effect if I become unable to make my own health care decisions and this fact is certified in writing by my physician.
LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE AS
FOLLOWS: I will execute a Directive to Physicians contemporaneously with this medical power of attorney, and the appointment of my agent hereunder and the terms of said Directive with respect to said appointment shall govern in situations to which it applies.

DESIGNATION OF ALTERNATE AGENT.
(You are not required to designate an alternate agent but you may do so. An alternate agent may make the same health care decisions as the designated agent if the designated agent is unable or unwilling to act as your agent. If the agent designated is your spouse, the designation is automatically revoked by law if your marriage is dissolved.)
If the person designated as my agent is unable or unwilling to make health care decisions for me, I designate the following persons to serve as my agent to make health care decisions for me as authorized by this document, who serve in the following order:
A. First Alternate Agent

Name: [First Alternate Agent]

Address:

Phone:

B. Second Alternate Agent

Name: [Second Alternate Agent]

Address:

Phone:

The original of this document is kept at ______________________________________________________________.
The following individuals or institutions have signed copies:
Name:

Address:



Name:

Address:

DURATION.
I understand that this power of attorney exists indefinitely from the date I execute this document unless I establish a shorter time or revoke the power of attorney. If I am unable to make health care decisions for myself when this power of attorney expires, the authority I have granted my agent continues to exist until the time I become able to make health care decisions for myself.
(IF APPLICABLE) This power of attorney ends on the following date: .
PRIOR DESIGNATIONS REVOKED.
I revoke any prior medical power of attorney.
ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.
I have been provided with a disclosure statement explaining the effect of this document. I have read and understand that information contained in the disclosure statement.

(YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)
I sign my name to this medical power of attorney on the _______ day of _____________________, 2008, at Houston, Texas.



____________________________________
[Principal]

STATEMENT OF FIRST WITNESS.
I am not the person appointed as agent by this document. I am not related to the principal by blood or marriage. I would not be entitled to any portion of the principal’s estate on the principal’s death. I am not the attending physician of the principal or an employee of the attending physician. I have no claim against any portion of the principal’s estate on the principal’s death. Furthermore, if I am an employee of a health care facility in which the principal is a patient, I am not involved in providing direct patient care to the principal and am not an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility.
Signature:

Print Name: Date:

Address:


SIGNATURE OF SECOND WITNESS.
Signature:

Print Name: Date:

Address:

Customer: replied 1 year ago.


Last thing....will these POA's be legal if he has been diagonoised with Dementia? Like I said he has been in his right mind the past few days, but can someone challage them? Or will the notary be witness that his is ok to sign?

Expert:  Richard replied 1 year ago.
As long as he signs them while he is having a "lucid interval," they will be legal. Someone could challenge them...there's nothing to prevent that but the burden is on them to prove he did not have the lucid interval.
Customer: replied 1 year ago.


Sorry, one more...these POA's do I need to file them somewhere or does a notary just stamp with us and that will suffice?

Expert:  Richard replied 1 year ago.
No worries...I'm here to help. They need not be recorded anywhere; you simply present them when you are asking someone to rely upon them.
Richard, Attorney
Category: Legal
Satisfied Customers: 45710
Experience: Attorney with 29 years of experience.
Richard and 5 other Legal Specialists are ready to help you
Expert:  Richard replied 1 year ago.
Thank you so much for the positive rating! I appreciate having had the opportunity to serve you! If I can be of assistance to you in the future, just look me up and I will be happy to help!

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