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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My dad was has a blood clot in his liver. He was sent to a

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My dad was has a blood clot in his liver. He was sent to a nursing home to be given blood thinner shots. About a week later he was rushed to the hospital w/ internal bleeding. The doctors were unable to locate the source of the bleeding, and my family and I waited, expecting the worst. They eventually found the bleeding and stopped it. His doctor told us that the cause of his internal bleeding was the blood thinner shots he had been receiving in his stomach. He said that the shots should have been administered in his legs, because there was not enough fat in his stomach.

My dad was on life support after the surgery because his kidneys had started to fail from all the blood he lost. They took him off life support w/out any problems, and he was given dialysis, which returned his kidney function to normal. Then he was sent back to the nursing home he had been at before. My mom and I went to visit him yesterday and asked him about his treatment. He said he is receiving the same blood thinner shots in his stomach again! We told him that was why he almost died, and he said, “I know, but they won’t listen to me.”

On the way out, I tried several times to get my mom, who is my dad’s health care proxy, to talk to the nursing home doctor about this. She kept saying that she didn’t care, would talk to my dad’s doctor if she got around to it and felt like it, and that if I was so concerned about it, then I should call his doctor. It wasn’t simply that she wasn’t taking the matter seriously, which would be bad enough: she had absolutely no concern for whether her husband lived or died. This is not an exaggeration. Even though my dad is the most passive person in the world, ever since I was a child, my mom has been verbally abusive to him. She has many times screamed at him about how much she hates him; how she wishes he was dead; how when he dies, she’s just going to put him in a trash bag and throw his body in the lake; even how she would kill him if she could get away with it! She was the reason he moved into his own apartment and was living on his own despite his health problems, because he could no longer deal w/ her abuse.

My mom obviously has some mental issues, but has refused to seek treatment. My dad had never picked a health care proxy, so my mom was by default. She then went to the hospital and filled out the paperwork to make it official. So, he had never actually designated her to be his health care proxy, until he was in the hospital in severe pain, on anesthesia, about to undergo surgery for a life-threatening condition, and was extremely confused and disoriented, according to his doctor and my mom herself.

Although not usually that bad, my dad is often confused and disoriented, because he suffers from schizophrenia, which he has been on antipsychotics for decades, and have confusion and disorientation as two of their main side effects.

My dad said before the surgery that he wished to be DNR. My mom thought DNR meant no resuscitation or life-sustaining treatment whatsoever, and told the doctor to pull the plug on him! The doctor had to explain to my mom what DNR meant. My mom doesn’t understand what’s wrong with my dad, his prognosis, what DNR means, what he said he wanted, or any of the other most basic medical terms and procedures. But she’s the one who is in charge of making life-and-death decisions for him!

I want to have my mom removed as my dad’s health care proxy and try to have myself appointed. From what I have read, I would need to challenge it in court, and it may take a long time. I cannot afford a lawyer, and my dad doesn't have a long time. They are giving my dad the same treatment, in the same way, in the nursing home that almost killed him, and my mom is totally fine with it!

I was wondering what my options are here. So, my questions, finally…

1) Is there such a thing as an emergency health care proxy challenge, if the proxy is unfit, and time is of the essence in saving the patient's life?
2) Can I do this on my own, without a lawyer? What is the step-by-step process of challenging a healthcare proxy?
3) Was my dad considered competent to agree to my mom’s appointment as his health care proxy, given his schizophrenia, medication that causes confusion and disorientation, and the fact that when he agreed to it, he was sedated in a hospital bed? When we visited him yesterday, he was still very confused and thought that he was still in the hospital, whose name he could not recall.
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your dad's situation.

1) Is there such a thing as an emergency health care proxy challenge, if the proxy is unfit, and time is of the essence in saving the patient's life?

The answer is yes, although it is part of the overall challenge for the proxy. Here is they way it would work:

a. You would file a complaint alleging her incompetence as the next of kin proxy, and ask to be made the designated person to make the decision;
b. Along with this complaint, you have the option of filing an ex parte request that would have the Court consider this IMMEDIATELY on the day of it being filed, without the other party even having been served;
c. The Court may or may not grant this ex parte order for you to be the temporary party;
d. The other family members are served; and a hearing is held where once they were served, the mother may answer and try to prove that she is making fine decisions. The Court may drop, extend, or modify the ex-parte order;
e. If necessary, another hearing is held down the line for a permanent proxy decision.

2) Can I do this on my own, without a lawyer? What is the step-by-step process of challenging a healthcare proxy?

While technically you can, this is like asking how to do minor surgery. The steps are very nuanced and complex, and they involve filing with the clerk of courts in the county needed, service of process, and knowing state and local rules of procure and evidence. This is not easy. If finances are an issue, I can recommend three resources. First, here is a list of all pro bono work in the state...

http://www.abanet.org/legalservices/probono/directory/massachusetts.html

…and another list:

http://www.lawhelp.org

Finally, you may call your local law school and see if they have a legal clinic place available. The legal clinic is a free service the school(s) provide to the community. While they are often overbooked, they have openings sometimes. Here is the list law schools in your state:

http://www.hg.org/law-schools-massachusetts.asp


3) Was my dad considered competent to agree to my mom’s appointment as his health care proxy, given his schizophrenia, medication that causes confusion and disorientation, and the fact that when he agreed to it, he was sedated in a hospital bed? When we visited him yesterday, he was still very confused and thought that he was still in the hospital, whose name he could not recall.

The presumption is that the proxy is valid, however, this may be challenged in Court based on (1) this mental condition and (2) the general decisions (or lack thereof) by the mother:

If he did not understand what he was signing, then he is not bound by it. Krasner v. Berk, 319 NE 2d 897 - Mass: Supreme Judicial Court 1974; and/or, the proxy may be overridden if her decisions are only making things worse.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

Thank you very much for your extremely helpful answer. I'm sorry, but I just have a few more questions, if that's okay, and then I will give you the top rating and an excellent review.


 


If my father does pass away, my mother is going to be the executor of my dad’s estate. She knows who the beneficiaries are in his will and on his life insurance policy, which the rest of the family does not know. I am afraid if the worst happens, my mother is simply going to try to take everything for herself, cutting out the rest of the family, simply out of spite. So, last questions…


 


1) Is there a way I can find out who the beneficiaries are in my dad’s will and life insurance policy, other than asking him, since he’s not even sure where he is right now? If not, how about after his death?



 


2) Can I challenge my mother’s status as executor of my dad’s estate? How do I go about doing that?



 


3) What happens if my mom does not honor the wishes of my dad in his will and life insurance policy?

Expert:  Ely replied 1 year ago.
Chris,

Thank you very much for your extremely helpful answer. I'm sorry, but I just have a few more questions, if that's okay, and then I will give you the top rating and an excellent review.

You are very welcome and of course, please ask as much as you need to - this is why I am here. No need to apologize!

1) Is there a way I can find out who the beneficiaries are in my dad’s will and life insurance policy, other than asking him, since he’s not even sure where he is right now? If not, how about after his death?

I am afraid that the answer is no. There is no "central database" for this federally or in the state, and thus, unless you find paperwork that answers the question or the insurance company volunteers the information (not likely, unless he passes and this would be part of probate), then no. I am sorry.

2) Can I challenge my mother’s status as executor of my dad’s estate? How do I go about doing that?

Yes. This would be done by filing a pleading with the PROBATE court to do so. Under CHAPTER 195, Section 11, "if an executor or administrator who resides out of the commonwealth, having been duly cited by the probate court, neglects to render his accounts and to settle the estate, the probate court may remove him..." and appoint an alternate (i.e. you, for example). So you can do this, but you'd need reason to do so, as in he is not performing he duties, or is performing them wrongly.

3) What happens if my mom does not honor the wishes of my dad in his will and life insurance policy?

The life insurance policy simply pays out the money to the beneficiary (whoever that may be), directly. So there is no way that she can really stop that.

As for the will, anyone who interferes may be ordered by the Court to stop, and if executor, removed for good cause.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86711
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 7 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Hello again. My father made remarkable progress and is able to think clearly, talk again, etc., again. He gladly signed a new health care proxy form for me, naming me his health care proxy and taking my mom off completely. He signed in the presence of two witnesses (nurses at the nursing home, who can attest to his mental state) and I gave a copy of it to the social worker at the nursing home. So, that turned out to be much easier than I thought it would be!


 


But my dad also agreed to sign durable power of attorney over to me. My mom came to the nursing home the other day and said that she wasn't going to pay his rent from his monthly SSI and state pension checks he gets, meaning he would lose his apartment and have nowhere to go after the nursing home discharges him, after 90 days -- the maximum time period Medicare will cover -- go by. And she told my dad "This [the nursing home] is your new permanent home now." My mom doesn't understand that Medicare only covers inpatient treatment at nursing homes for 90 days, or that my dad needs to have somewhere to live after they discharge him, and wants to go back to his old apartment. My dad is also very concerned about my mom taking his money.


 


This is where my durable power of attorney part comes in. My mom went to see my dad in the nursing home yesterday, and, when she found out I had power of attorney and would be handling my dad's finances until he recovered, she suddenly changed her mind and decided to pay his rent for the next two months after all so he can keep his apartment. I've had long talks about this with my dad, and he does NOT want my mom handling his finances anymore than he wanted her as his healthcare proxy, after everything she has put him through. As I mentioned before, my mom can be very verbally abusive and aggressive and, according to my dad, "bullied" him into agreeing to let her continue to handle his finances while he's in the nursing home.


 


My dad did not, however, revoke my power of attorney, so I am still the one who is officially, legally designated to access his bank accounts, SSI and state pension payments, pay his rent, etc. Is my mother allowed to do simply ignore the power of attorney form that my dad signed and continue to manage his finances? Is she breaking any laws by interfering with my duties as attorney-in-fact? What can I do to prevent her from doing it? Would I have to get a court order?

Expert:  Ely replied 1 year ago.
C,

Thank you for your follow up.

Hello again. My father made remarkable progress and is able to think clearly, talk again, etc., again. He gladly signed a new health care proxy form for me, naming me his health care proxy and taking my mom off completely. He signed in the presence of two witnesses (nurses at the nursing home, who can attest to his mental state) and I gave a copy of it to the social worker at the nursing home. So, that turned out to be much easier than I thought it would be!

WONDERFUL news! I am very glad to hear of his recovery and the proxy development.

Is my mother allowed to do simply ignore the power of attorney form that my dad signed and continue to manage his finances? Is she breaking any laws by interfering with my duties as attorney-in-fact? What can I do to prevent her from doing it? Would I have to get a court order?

She only has access to the accounts, SSI, and state pension if her name is on them. Assuming they are not, she cannot ignore this, but you may wish to contact EACH entity, explain the situation, and give them a copy of the POA to confirm that you would be the only one they deal with.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.

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