Legal Question in Family Law in California
My grandmother suffers from demensia and is not able to make sound decisions for herself and has not been able to do so for some time. My father has Financial POA and is also the designated health care agent on the health care directive. I am listed as the alternative agent and the Codesile to the POA, Adult protective services has removed my grandmother from my father citing that he is unable to take care of her. My Uncle was granted temporary custody but i have requested that she be released to me instead. The adult protective service agent stated that my grandmother has revoked the POA and does not want to leave. My concern is that she can rarely remember things and has trouble understanding what things mean so I do not belive that she is capable of making any deciusions. My question is do I have the legal right to be appotied care giver for my grandmother or is there nothing that I can do?
3 Answers from Attorneys
Even if the revoking of the health care directive is void because she did not have the required mental capacity to undnerstand what she was doing, you have two lmajor problems. 1. You have to prove the lack of mental capacity, which would be costly and time consuming. 2. You would have to show that her living with your uncle is not to her best medical interests.
Speak to your Uncle and try to get him to agree to your taking over and telling the Agency to have you as the caregiver.
The financial POA was revoked as a matter of law by her dementia unless it was a properly drafted springing power and all the steps for an official finding of incompetence was found. You do not mention anyone but your father being on the health care directive. So if he is not competent to care for her then there is no legally relevant directive of any kind in place. I disagree with Mr. Shers that it would be difficult and time consuming to establish her mental incapacity, since protective services could not have removed her from your father's care without such a finding. The bottom line is that someone needs to initiate a conservatorship proceeding, whether that be you, your uncle or you do it together as joint conservators. It sounds like your father needs a conservator as well.
A conservatorship would resolve the matter. You should file as conservator for her and your father. Contact me directly for assistance.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
