Legal Question in Family Law in Pennsylvania
power of attorney
There are nine children in our family. The youngest who is 43 is handicapped and living in assisted living. My oldest brother is executor of our parents estate. My brother has not been very active and lives across the state, My disabled sister is in assisted living close to two of our sisters, Others in our family think she should be in a nursing home where she would get more health care. My oldest sister took it upon herself to draw up poer of attorney without our knowledge. We have found a nursing home that is excellent and half of our family agrees to move her including my brother who is executor. Does my sister who has poa have the right to keep her in assisted living?
1 Answer from Attorneys
Re: power of attorney
You asked if a power of attorney is valid.
In the situation you describe a power of attorney may or may not be valid. Only a person who has actual authority can devise a power of attorney. Unless drafted specifically for such a purpose to exceed a person's condition then a power of attorney is extinguished when the person is no longer competent.
In other words, if I am competent and I grant a power of attorney then that power of attorney is valid as long as I am alive and competent. If I should die or become incompetent then the power of attorney is extinguished unless it was specifically drafted as a durable power of attorney.
So if your disabled sister is or was mentally competent and she granted your oldest sister durable power of attorney then the power of attorney would be valid. If the disbaled sister was never competent then whoever had formal legal guardianship (or conservatorship) over her affairs could devise power of attorney. Though that power would also be extinguished on the death or incompetency of the grantor.
What you will probably need to do is petition the Orhan's Court in your locality for a competency hearing or guardianship over your disabled sister's affairs. Once that is established then the person or person's so charged by the court can determine the appreopriate situation for your disabled sister.
Good luck and regards,
Roger Traversa
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