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Can daughter control visits to ill mother from other kids?

Dear Mr. Premack: My mom is under hospice care, my older sister is the POA and my mom is in my sister’s home. My sister is being as difficult about visits from the rest of the children, who live on the east coast. She set visitation hours as Tuesday-Friday 8-11am and 1-3:30 pm, and won’t allow visits on weekends or Mondays. My sister is very controlling and gets angry at the slightest provocation. We siblings are beginning to question the quality of mom’s care. Hospice suggested respite for my sister, and suggested that we be allowed to visit more. Can we get a court order to visit mom? – MBR

What you can or cannot do begins with your mother desires. If your mother is legally competent (per her doctor’s diagnosis) then your mother should be making all of her own medical decisions, and her own decisions about where she will live. If she does not like the visitation restrictions imposed by your sister, your mother can decide to move to another location, and can allow visitors as she wishes.

If your mother has lost the ability to make her own decisions (per her doctor’s diagnosis) then her agent under the power of attorney (POA) has legal authority which was given, voluntarily, by your mother. However, the exact nature of that authority depends on what you mean when you say POA. Texas law provides for:

1) Medical Power of Attorney. This is authorized by the Health & Safety Code, and gives the Agent authority to make medical decisions if the doctor certifies that the patient has lost the ability to make her own medical decisions. If this is the type of POA she gave to your sister, then your sister can make medical decisions, decide where mom will live, and set reasonable visiting hours (or ban visitation altogether).

2) Durable Power of Attorney for financial and business matters. This is authorized by the Probate Code, and deals with your mother’s money, taxes, insurance, social security, etc. It has nothing to do with her medical care. If this is the type of POA she gave to your sister, then your mother has not given your sister authority over medical decisions.

If there is no Medical POA, then the Texas “Consent to Medical Treatment Act” must be consulted. When your mother is an in-patient or is receiving services from a “home and community support services agency” – and hospice fits that category – then this law gives medical control to the majority of the patient’s reasonably available adult children. In that case, you would be on an even footing with your older sister.

So your first task is to find out exactly what type of POA your mother has given to your sister, and whether it applies in this situation. Your second task is to find out if your mother’s doctor has determined that she is incapable of making her own medical decisions, which would activate the Medical POA (if one exists). If one does not exist, then build a consensus among a majority of the adult children and talk to hospice under the Consent to Medical Treatment Act. With proper authority, that majority group may be able to move your mother to another facility, away from your older sister.

Of course, it may be that your mother wants your older sister to be in charge. It may be that there is a Medical POA to her, and that the doctor has certified your mother incapable of making medical decisions. It may be that this is exactly the arrangement your mother wants, in which case you should honor her wishes. If so, you should remember that care is being provided in your sister’s private home, and that she has no obligation to open her home to visitors (even her siblings).

If you determine that the care being provided to your mother is substandard – which is unlikely given the quality standards of local hospice organizations – then your alternative is to file for guardianship in the local probate court. Be aware that guardianship is not an easy process, is expensive, is time consuming and must be done properly to honor your mother’s legal rights. If the court finds it legally proper for you to serve as guardian, then you’ll have a court order giving you control over her medical care, place of residence, and visitation.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, January 7, 2011


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