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legalgems
legalgems, Lawyer
Category: Legal
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Does a wife w/POA have sole right to discharge a spouse (46

Customer Question

Does a wife w/POA have sole right to discharge a spouse (46 yrs. old; early stages of ALS; no obviously physical ramifications except speech loss; cognition slow and deliberate, but otherwise, "normal". He is very unhappy and increasingly depressed, i.e., his dining partner is 103 years old. He can not leave his room to go anyway without being escorted
JA: Can you tell me what state this is in? And just to clarify, what paperwork has been filed?
Customer: DE. I know next to nothing about particulars. His wife does not communicate w/ me. I have found that numerous attempts to have him declared incompetent have failed.
JA: Has anything been filed or reported?
Customer: What do you mean by "anything" She has taken him to ER twice and he was released each time; Family services interviewed the wife and both children (boy age 17 and girl 14). No results were reported to me our other family members which leads me to believe the results were inconclusive at best. Negative results are always reported to me. Also, hid wife asked me to keep him for one week ( late April) so that she and Dr. could "convince" facility to take him. I'm sure there's a paper trail on all of this, but I have not seen and do not have access
JA: Anything else you want the lawyer to know before I connect you?
Customer: I have kept copious notes, all texts, etc. related to this. I think it's interesting that he was entrusted to me on two occasions, when it was convenient for his wife. More than once, I indicated that he is always welcome w/me. Her response was something to the effect that, "A caregiver in denial (me) and a patient in the latter stages of the disease (my son) is a dangerous/lethal combination." He was with me 24/7 both times and was good company and very helpful fixing, assembling, stuff, etc. at my shore rental property. He communicates appropriately via an assistive device, since he has lost his speech, which is the only obvious symptom. He hates where he is and wants to go home. Her position is that only she can discharge him and her answer is consistently, "No."
Submitted: 3 months ago.
Category: Legal
Expert:  legalgems replied 3 months ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Expert:  legalgems replied 3 months ago.

A POA for health care designates an agent who may make medical decisions for the person that is not capable of making them - please see:

http://www.dhss.delaware.gov/dsaapd/powerof.html

If the person is of sound mind and not mentally incapacitated, then they can make their own medical decisions; the POA operates when the person loses the ability to make these decisions unless this authority is to be granted prior to incapacity, which is rare, and can be challenged.

So the POA can be challenged if it is being exercised prior to the individual being incapable.

Here is the relevant statute:

http://delcode.delaware.gov/title12/c049a/sc01/index.shtml

An advanced health care directive similarly takes effect when a person loses capacity; please see:

http://delcode.delaware.gov/title16/c025/

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Expert:  legalgems replied 3 months ago.

Good day. Just checking in to see how the above worked out. You can always reach out to me hear on Just Answer and I will do my best to get the requested information for you. Thank you!