About healthcare power of atty and incapacity

UPDATED: Sep 30, 2022

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About healthcare power of atty and incapacity

My mom had an undiagnosed urinary tract infection for 2 months. The symptoms are weakness in the legs, dizzyness and intermitant confusion. She was finally diagnosed and treated for it. She is now back to normal with all symptoms gone. My brother was listed on her healthcare POA. He called her doctor and had him write a letter saying that my mom was incapacitated. He did not examine her, just wrote a letter. Does this make him POA or does that letter have to be filed in the court for it to go into effect? Mom has since signed another power of atty revoking the previous one and naming her 2 daughters as agents when she is not capable of making decisions. Is this new POA valid since that doctor’s letter is out there saying my mom is incapacitated? What can be done to remedy the situation?

Asked on October 5, 2016 under Estate Planning, Nebraska


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

1) Even IF, for the sake of argument, your mother was incapacitated at the time, that fact does not give your brother a power of attorney or any other authority over her. Unless you mother had herself given him a regular POA or a court appoints him legal guardian, he'd have had no power or authority.
2) A doctor's note or diagnosis does not have any legal effect by itself--in and of itself, it's just evidence, at best (and very weak evidence at most, if the doctor did not examine your mother). Only a court, after a hearing/trial, can determine someone to be legally mentally incompetent. So the note does not do anything, and it does not change the validity of her new POA, etc.

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