Legal Question in Elder Law in Missouri

Re: Dureable Power of Attorney

If your mother wants to go out with you, she can do it. The resident, and not the facility, controls who the resident can see and not see. A power of attorney has no more power than the principal, and cannot take actions that are contrary to the wishes of the principal. So if your mom wants to go out of the facility with you, she can.

Unfortunately, most facilities do not understand these distinctions and err on the side of keeping the person with DPA happy instead of knowing and implementing their legal duties under the law.

The best way for you to solve this problem is to file for guardianship. Guardianship is a court-supervised appointment which designates a person to make health care decisions for the disabled ward. While your sister's designation as DPA will carry some weight with the court, it is not dispositive. You would need to show why you are the proper guardian. One good thing to do is to move to appoint you and your sister as "co-guardians" such that she cannot take action without notifying you of that action. In that way, she could not exclude you nor could she interfere with your visitation.

The next time the facility says you can't take your mom out, tell them that Section 42 CFR 483.10 says that the resident makes the decision, and since the resident has not been declared incompetent by a court, so long as your mother consents, they can take no action. You can find this CFR on line. Tell them if they interfere with your right of visitation that you will sue them. This usually works.