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John Elder
John Elder, Estate & Elder Law
Category: Estate Law
Satisfied Customers: 4631
Experience:  Over 14 years experience in Medicaid, Estates, Trust.
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I am the next-of-kin of my 81-year-old brother, who fell and

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I am the next-of-kin of my 81-year-old brother, who fell and broke a hip in July. He had hip replacement surgery and is now in a rehabilitation center. in 2009 he had another fall (He has orthostatic hypotension) and broke a leg, and was drugged into a mental hospital. and it is happening all over again. He was given Remeron, an anti-depressant instead of the Megace an appetite stimulant) that I requested because he was not eating. From the day after the Remeron was started until the present, now three weeks later, he has been completely out of his mind. His delirium and hallucinations are possible side effects of Remeron. The Medical Director of the rehab center refuses to take him off of it. Is there any legal way I can get my brother withdrawn from the Remeron?
Welcome! Thank you for your question.

Are you your brother's health care agent under a written health care power of attorney?

If not, is your brother mentally competent sometimes at the moment?
Customer: replied 3 years ago.

No, my brother, when competent is quite stubborn and has refused to write a will, assign a durable power of attorney, or a medical directive.


At this time, while he is under the influence of this medication, he is not



At this time I am not willing to have him declared legally incompetent. I just need to get him off of this medication.



Customer: replied 3 years ago.

I answered these questions once before. My brother has noo will, no durable power of attorney or medical directive.


For the past three weeks, since he has been on this medication, he has not been competent. My goal is to get him off the medication.


At this time, I am not willing to have him declared incompetent, as I am sure he will return to normal when the medication is discontinued.




Sorry for the delayed response. I was with other customers for a few moments.

I am also sorry to tell you that if your brother does not have a medical directive naming you as his agent that you do not have any legal authority to speak on his behalf. The law does not automatically give you that authority. The only way that you can have the legal authority to speak on his behalf is to have the court declare him legally incompetent and appoint you as his guardian. While I understand that this is not what you want to do, he has given you no choice by refusing to put in place legal documents that will authorize someone to exercise his rights on his behalf.

As you may be aware, the incompetency and guardianship process is not an easy process. It is one that requires him to be declared incompetent by a court and the court to review all possible guardians and decide who the best guardian would be for him. This could be a public guardian if the court finds that no family member is appropriate to make decisions that are in the best interest of your brother. I agree that it is a very difficult process. However, it may be the process that your brother needs right now. If he has no advocate then that is the only way that he receives an advocate.

I would suggest that you get the advice of a highly qualified elder law attorney in your area before you pursue the guardianship process. You can find one at

I cannot provide you with legal advise. I have provided you with information about the law related to your question. My answer, and any information that you find online, should not take the place of having a consultation with a lawyer in your area to advise you regarding your specific issues.

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Customer: replied 3 years ago.

is there any legal way I can get my brother withdrawn

You must pursue the incompetency route and have the court appoint you his guardian to have the legal authority to force withdraw or any action on your brother's behalf.