Do I get power of attorney on my parents estate if they are not willing to give it to me? My parents are in thier late age and are in poor health. They are also ruining the finances of all the business they own, we are talking about many millions of dollars in the estate. They are mentally depressed and always saying they want to die,(every day they tell me this ). They do not, however, want me to take over the business. Can I force their hand and get power of attorney without their permission? I would do this only for the best of everyone's future.
The best person to answer the question of POA on your parents estate, is an Elder Law Attorney. They have a website NELA. There are many well known, reputable Elder Law Attorneys in New York City and Brooklyn. I do not think you can force their hand with out them being declared legally incompetent, and your being named their guardian. This is a very long process. I again urge you to speak to a Elder Law attorney. You state they are "mentally depressed and that they want to die. However, their desire to die is not strong enough if they not willing to give up their business. It might be quite difficult, but it sounds as though their mood shoud be evaluated. A Social Worker can do this. However, if they would benefit from medication, they would need to see a specialist.
, Nurse and Care Manager answers:
You will need to have your parents evaluated for competency by a psychiatrist. If they are deemed competent, they have the legal right to make bad decisions. if they are considered incompetent, you can pursue guardianship. The most important thing of course is that they are safe and do not pose a danger to themselves or others.
There is no possible way for you to obtain a power of attorney over your parents' financial situation without their willingness to appoint you to that role. You cannot do so against their wishes.
The only thing that is available is a guardianship action which requires a legal proceeding, is extremely expensive, and would probably be contested.
Our firm has had great success in helping to pave the way to power of attorney appointments in scenarios like yours, by reaching out to everyone involved.
Power of Attorney would have to be given voluntarily by individuals who have the legal capacity to do this. If there is diminished capacity (and this would have to be determined by professional asessment and legal proceedings), it could be possible to get control of the situation via guardianship proceedings. The best first step would be to sit down with a geriatric care manager to discuss the possible scenarios.
No you cannot "get" a power of attorney, one must be given. If your parents truely lack decison making capacity, then you can apply for a guardianship of either person or property or both. If it is just a question of what you consider "bad" decisons, sorry we all, no matter our age, have the right to make "bad" decisions.
, Geriatric Care Manager answers:
While this is a common situation, it is nevertheless upsetting to all family members.
In my experience, asking them for their thoughts about the future of their estate may be a beginning. Do they have any thoughts about the future of their estate and business? Calling in a trusted friend, family member, or professional Geriatric Care Manager may facilitate this discussion. A professional may additionally assess your parents capacity to make these decisions as well as facilitate a family meeting.
, Elder Law Attorney answers:
A Power of Attorney is a document that must be freely given by someone with capacity. If someone is incapacitated, i.e., likely to suffer harm because he or she is unable to manage her finances or make reasoned personal decisions then a court may appoint a guardian of the person and/or of the property for an incapacitated person. Their mismanaging their business could be reason to seek guardianship, but you would be bringing them to court to say that they are incapacitated. This may have a permanent detrimental effect on your relationship. Perhaps enlisting the aid of someone else to approach them might be a way to begin a conversation with them?
This is unfortunately not such an unusual situation. I have found one way to go is to think of someone your parents trust and will listen to. For some families this is their physician. With a family I recently helped, it was the lawyer brother-in-law. He literally sat with my client and said,"You need to do this."
If there isn't someone that can fairly easily be found, I recommend bringing in a Geriatric Care Manager. Perhaps that person can help get treatment for your parent's depression, or help all of you call a family meeting and let them know they are risking everyone's future. Perhaps if they hear this clearly from everyone in a measured way, they will respond. Good luck.
You can not get a POA against someone's wishes. If they are incapacitated, you can do a Guardianship
, Elder Law Attorney answers:
You cannot force anyone to give you power of attorney. If capacity is an issue this is a matter for the courts. You may want to bring in an objective third party such as a geriatric care manager to help your family understand the issues/options.
You can force anyone to "give" a power of attorney. If they are unwilling and not capable of managing their affairs, only the appointment through the Supreme Court of a guardian will allow you to step in.
, Geriatric Care Manager answers:
Sorry but this requires court involvement. Likely guardianship or conservatorship.
You cannot force anyone to give you a POA. Your only recourse would be to commence a guardianship action alleging that your parents do not understand and cannot adequately handle their own affairs.
Power of Attorney must be with their permission as they are granting you the authority to act on their behalf.
Alternatively, court intervention through conservatorship or guardianship may make sense under these facts.
You cannot force someone to give you a POA. You can bring a guardianship proceeding which may accomplish your goal.
Your parents have the right to run their business imprudently and to mismanage their business should they so elect. You do not have the right to demand a power of attorney from them simply because they are aged or infirm. However it appears from some of the facts, that your parents may be exhibiting signs that they no longer have the legal capacity to manage their personal and business affairs and, if so, you might be able to achieve management of person (health care decisions) and property (financial affairs) if a guardianship process is initiated, and 2 physicians, the attorney appointed by the court to represent your parents, and ultimately the court, all agree that they lack capacity.
Feel free to reach out to me to discuss.