Father declared incompetent but fully recovered. Can decision be reversed?

Some clarifications first, please...

Was your father in a rehab facility after the fall, specifically for the purpose of recovering from the fall?

HOW did your sisters "have him declared incompetent" if he wasn't at the time, or if he appeared to be but wasn't? I assume one or both of them are named as health care proxies? Was the declaration made by doctors with whom he treated or was just seen after the fall? On what basis specifically was he declared incompetent?

How did the declaration hinder his "chance to get better?" Was he emotionally upset after learning of the declaration?

What evidence do you have that "the doctors are lying to him"? This is a pretty serious accusation to make. It assumes that you not only know the doctors are lying but that you also know what the doctors are telling him. Were you present when the doctors "lied" to him? And what proof do you have that it was the sisters' request to be untruthful?

I'm not familiar with the term "board and care". Are you in the UK, and is this some type of assisted living facility?

Your sisters could not sell the house without legal authority to do so, so I'm assuming they also have a durable power of attorney?

As to reversal of the declaration, it depends on how it was obtained, and the laws of the country in which you live. Your post title states that your father is "fully recovered." Again, on what do you base this? Another doctor's evaluation?

There are just too many unknowns to provide an accurate answer. If your father was in fact incorrectly diagnosed, you'd probably have to get an overriding opinion from other doctors. But you'd also have to address the basis for the original declaration as well as the fact that the sisters apparently seem to have legal authority while you don't.

You might consider advice from an elder law attorney.

I really appreciate you taking time out of your day to respond in such detail. I will try my best to clarify.

After the fall, Dad was taken to the Intensive Care ward of The Hospital. He had a broken Orbital bone, and a broken cheek bone. He had bleeding on the brain, and was in for a lengthy recovery. He recovered there for a day and a half and was moved to the Rehab ward. After a few days there, when he had not even had a chance to fully heal, the Sisters had a Doctor come in and declare him incompetent. My Sister Barbara is the Durable Power of Attorney for Health Care, so it was her decision. I had no idea this had happened.

After that, he was moved to a Nursing Home. I was with him every day for three weeks and when I say that he's fully recovered, I mean that he can talk, recognize everyone, walk 300 feet at a time, eat. He's back to where he was before he fell.

I want you, and everyone to know that my Sisters are truly bad people. Dad's house is worth upwards of $600,000 dollars, and they have already begun the process of putting it on the market. Meanwhile, they plan to ship Dad off to a Board and Care to die, so that they can run off with their respective shares of his money. A Board and Care is a facility that is privately owned, Dad will have three roomates, and Medical Care. Trouble is they continue to tell him to his face: "You're going home soon, Dad". And he wants nothing more than to go home.

As far as how I know that the Doctor is lying: Since Dad has been declared incompetent, the Doctor has decided that saying anything that upsets him will be bad for his Health. The Doctor discussed sending Dad to a Board and Care when Dad was not present, and then walked right up to him and told him he was going "Home" on Tuesday.

Since I am not the Power of Attorney, it is legally not my decision to have another Doctor come in for a second opinion now that Dad is recovered. I really don't know what to do, because if another Doctor came in, Dad would be deemed competent again.

I am a Caregiver, and I have Children and a Mortgage. I cannot afford to hire a Lawyer, and my Sisters can.

I don't know whether to file a complaint to Adult Protective Services, file a Police Report, or what other course of action to take.

Any advice would be wonderful, and thank you again for responding.

So you are saying that TWO doctors are willing to jeopardize their MD license by lying to the patient and signing the papers? And Dad's brain has completely regrown the dead tissue? He can now bathe himself, dress himself, cook, clean, manage meds and finances? Are you sure? Are there any other witnesses to the recovery?

Pbassett, the key question is how good your father's cognitive function is - it's a bit more complicated than whether he recognises people. It would be more like an independent assessor deciding whether your father can analyse his own situation and understand the consequences of his decisions. How was he, in those sorts of terms, before he fell?

The thing is, I really don't like the sound of how your sisters are behaving and I can understand your anxiety; but you've got an uphill struggle ahead. You could call APS and voice your concerns, but you will have to do so cleverly: forget about your sisters' being 'bad people' and concentrate on the ethics of having him declared incompetent while he was being treated for a specific traumatic injury.

Another idea: does your father have his own lawyer, and do you know who that person is? If a lawyer who has known your father for some time went to visit him socially and have a little general chat, that could also give you information you could work with. By the way, the lawyer isn't for you, so the fees wouldn't be paid by you. The client is your father. All you have to make sure of is that any lawyer - for goodness' sake pick one with a good reputation if there isn't one already attached to the family - understands that you do not have the authority to hire him and are asking for his advice on spec.

Now then. This is harder for me to say, but try to calm down and focus on facts. If your father were back to his completely normal self, and fully in command of his faculties, how long do you think the doctor would go along with the idea of telling bare-faced lies to his competent patient? It would be SO unethical, and what's in it for the doctor? Have you had a conversation with this doctor yourself? Does he continue to insist that your father is incompetent?

What I mean is, it's important that you allow yourself to consider the possibility that your father really can't go back to his own home, or manage his own finances, and give some thought to what alternatives might be best for him. If your sisters are planning to sell his home and squirrel away his funds while he's carted off to a sort of elders' orphanage, well, there are rules about that sort of thing, too - they can't just pinch his money and commit him to substandard care. There are rules about POA, and your father's money has to be spent wholly and exclusively on his welfare. Any deviation from that and then, yes, you most certainly do call APS.

I hope you'll be able to get good advice from professionals on what to do first. Best wishes for your father's continuing recovery.

Possibly you could go to the supervisor of the doctors that are lying, and tell them about the situation.

Thank you for taking the time to respond to me. My father was declared incompetent to handle complex medical decisions. I feel he was not given a chance to recover enough before this was done. He is still recovering and I have heard the caseworker for the insurance company tell my father that maybe a board and care would be the right decision "for the interim". I have spoken to her myself and know that she is aware of the fact that my sisters are selling the house. I was not at the hospital when the doctor came in and told dad he was going home on Tuesday, but he called me immediately afterwards, telling me everything was okay, the kaiser doctor was just in and told him he was going home on Tuesday so I did not have to worry about that anymore. He was so happy with the news. I went with my sisters to see the board and care homes. The one they chose is not a bad place. As far as my father having a lawyer that he works with, he has not seen one for many years. Dad was never the one to do the finances, Mom always handled that. I do it for him now. I think my question is now that he has been declared incompetent, is he going to be expected to be a financial whiz in order to be declared competent again?

pbassett, I assume that one of your sisters has your dad's POA for finances. Maybe it is the same one that has POA for healthcare. I'm sure someone has checked the paperwork to make sure your sisters have the authority to sell. If one does have the authority, then the house can be sold. But they should make sure the money goes into an account to provide for your dad, and not one cent used for anyone but dad.

The idea of competence can be revisited, perhaps by your doctor's primary care doctor. It sounds like his injury was a pretty bad one. Has he fallen often before this time? I had wondered if your sisters may think he is safer in a group setting, where he'll have meals prepared for him and people to talk to. Perhaps this is their thinking, instead of being evil.

I don't know the situation well enough to say what it is. If you want to reverse the competence decision, talk to your father's primary doctor. You do not have to be medical POA to take your father to the doctor.

pbassett77, from what you posted, your sister has Power of Attorney for Health Care.

Do you know if your father give your sister(s) a separate Power of Attorney to sell his house and manage his finances? Unless your sister have such signed and notarized paperwork, they are waiting the Realtors time.

The house might be worth $600,000 but what equity is in the house? Is there a mortgage on the house? Reverse mortgage? Open equity loan? And if the house can be legally sold, said proceeds will go to your father, minus the expenses from selling the home. And what about his furniture, clothing, etc.? If you sisters sell any of that, the proceeds also go to your father.

"I feel he was not given a chance to recover enough before this was done."

I think that's the most pressing matter, isn't it - whether your father's competence was assessed at a time when he was still acutely unwell from his fall, and should therefore be reassessed now that he has recovered. At least that is a comparatively straightforward question to put to an elder attorney, which I'd have thought - don't quote me - you could do on your father's behalf.

Health/medical and financial POAs do exist as separate entities, of course; but I haven't heard of mental capacity being divided in the same way, so that someone is deemed competent to manage their financial affairs but not their medical ones, or vice versa. As far as I know, a person either has mental capacity or he hasn't.

He wouldn't be expected to be a financial whizz-kid, no; just with a regular person's grasp of managing personal finances. Which, now I come to think of it, can still get pretty complicated…

PB, what does your father think or say about the whole principle of your sisters' managing his affairs? Has he expressed an opinion about that?

We really need an answer to who is named in the Durable Power of Attorney. If your sisters don't have financial authority pursuant to either a DPOA or guardianship, then selling your father's house without his consent and signature on the listing agreement, any purchase agreement and/or closing agreements would be illegal.

Let's address this issue and then move on. This point is begining to take predictable twists and turns but in order to provide appropriate answers we need to address some basic information.


And I'm still not able to accept that these doctors deliberately lied to your father. While there certainly are bad physicians, I'm inferring from your post that the two who certified him are actually collaborating with your sisters. I really find this difficult to accept.


You stated:

"Since I am not the Power of Attorney, it is legally not my decision to have another Doctor come in for a second opinion now that Dad is recovered. I really don't know what to do, because if another Doctor came in, Dad would be deemed competent again."

Okay, so you don't hold a medical power of attorney, but if your statements are correct that your father is competent, why can't he ask for a re-evaluation himself? Notwithstanding that the alleged Dx was that he can't make medical decisions for himself, this is not a complex medical decision.

And as Jessie points out, you don't need a medical POA to talk to the doctor.

The other posters have also raised answers which need to be addressed, including FreqFlyer's questions on any encumbrances against title to your father's house, Pam's questions about the doctors who allegedly falsely certified incompetence, and CM's queries about your father's position on your sister's activities.

And if you really believe these doctors are lying, take Whitney's suggestion and see what happens when you accuse doctors of falsification. This issue keeps coming up, so address it and move on.

Lacking answers to these important issues, I think answering any further questions by posters who are trying to help is futile.

Reflecting on recent posts with the same MO, they also presented an emotional situation which drew posters to respond, took a few predictable turns, then presented a caveat which allegedly made it impossible for the poster to act in a way that addressed the original query, yet still requested advice on a seemingly insolvable problem.

There are some familiar patterns here.

@GardenArtist I apologize for the delay in responding. I do not know who might have durable power of attorney, but my oldest sister has the POA for healthcare. My second sister is the executor of my father's trust and she may be the one behind possibly a conservator ship? I am sorry that I do not have all the facts but I will find them out. My fathers house is paid for and has nothing such as a reverse mortgage against it. A lot has happened since last post. My fathers good friends, who have been visiting him are very upset and feel the same as I do. My father was the president of his SIRS chapter and involved in great books before the fall and has some very good and intelligent friends. One of them sent me an email from my second sister that exacerbated my fathers injuries and said very hurtful and thankfully very provable lies about my ability to care for him. They are advising me to get in touch with APS and a lawyer which I will do tomorrow. Does anyone know how I may be able to get one inexpensively? Regarding the doctors, after I found out that my dad had been declared incompetent, I called his primary care doctor for a telephone conference with dad and we started trying to find out what was going on. He was understandably upset, but right after I left for the day and got home, he called me and said that a doctor from Kaiser had just been in and told him he had good news, dad would be going HOME on tuesday. He told me that everything was fine and I could stop worrying, it had been a "shit" day, but all was well now. I called the convalescent to find out about this and was told to call my sister, no information would be given to me. At the weekly meeting that day when I questioned the caseworker who told me dad had no capacity after I forced the issue, the doctor and caseworker said this was not a subject to discuss right now and they would be back later. I said would dad be involved and she said yes. Later, she came in while he was asleep and said that if I wanted to know anything I had to call my sister. I really appreciate your help, your responses have been so helpful. I will answer to the best of my ability.

PB it sounds as though you're caught in a sh*tstorm of officious NH staff, grumpy territorial doctors and sisters who just fancy a nice tidy line in sorting out their father without bothering about his quality of life or any silly little things like that… very hard going. Best of luck, glad to hear there are allies on board, keep us updated.

@countrymouse, Thank you for your response. I feel strongly that my father was declared incompetent prematurely. I am also thinking, (not knowing) that people at the convalescent were given the same information as my fathers friend about my ability to care for him. It is a very big sh*tstorm but I would never stop feeling guilty if I didn't try to do what I could. I appreciate your kind words, some were not so kind.

pbassett77, can't your Dad add your name as another person that can get personal health information regarding this case? Since your Dad is back to being healthy, shouldn't he be able to make his own health decisions now?

You could give us more information, such as whether you live in his house, whether you were being paid for caregiving, and the level of your dad's competency before the fall. Then we could commiserate with you, sympathize with you, offer suggestions, and generally discuss your situation.

But it seems to me that your basic question is legal, and you need to have proper legal advice regarding it. Do your sisters have the authority to sell your father's house? Do they have the authority to place him in care against his wishes? In turn, those answers may depend on whether your father is now competent to make his own decisions. You may have the right to contest the house sale until a current opinion can be obtained regarding the competency question. I don't know. I am not a lawyer. But it seems to me that is the kind of advice you need.

When my mother broke her hip she was delirious in the hospital. It was clear to anyone that she could not even understand the questions about her treatment. The hospital turned to her family for answers. She did recover to her former level of functioning. That the hospital treated her a (temporarily) incompetent to make medical decisions did not confer on us the authority to sell her property (for example) after she recovered. If your sisters are acting on the basis of Dad's incompetency, see a lawyer about if you can insist on a competency hearing.

Doctors avoid telling patients the truth all the time, if they think it is in their best interest. My mother's doctor, for instance, has never told her that she has dementia. Or by "going home" the doctor may have meant "to your new home." Or even just "Out of the rehab place." I really don't think pursuing the doctor's "lie" is worthwhile. Just focus on whether your sister have the authority to do what they are intending to do.

Also realize that selling the house is NOT similar to getting their inheritance early. Your father is not dead. That is his money and must be used solely for his needs and care.

@fregflyer, My father has been declared incompetent. He has no rights unless he gets it back. Hard to do. That is my mission.

@jeannegibbs. I have lived with my father for the last 2 years. I have been there primarily because of a serious heart condition and instability. I was being paid expenses by my sister but the money paid would be taken off the top of the sale of the house when dad passes and then the remainder split 4 ways. As I stated but you might not be aware, dad was president of the SIRS branch and a member of the great books organization. He was alert and oriented x 4. I do not know what level of authority has been given to my sisters, but a realtor was at the house on thursday afternoon and that was the intention of my sisters. Thanks for the post

pbassett77, I am glad your father's friends are on your side in this. And I hope after you consult an attorney you come back and tell us how this unfolds. We learn from each other.

I was under the impression that it takes two doctors to find someone incompetent. And that the test are quite lengthy here in the States. Correct me if that is wrong? I realize different countries have different rules.

As for selling the house, the closing/title company will ask for a Power of Attorney that says the person representing the owner has permission to sell the house on behalf of the owner. If the POA isn't written correctly, everything comes to a stall.

So it looks like pbassett wants to continue to care for dad, in his own home, but is being roadblocked by the POA and Health Care Proxy. So sorry, but two doctors opinions would outweigh the child who is a paid caregiver. So pbassett should think about finding a job and a place to live for now. If at some future case review dad is showing signs of competence pbassett could then take him into her own home.

@freqflyer. You are correct. We are in the states as well and my position is that since one doctor signed off less than two weeks after the fall and the other less than three weeks, it was done prematurely. Maybe it is only temporary as one of you responded but it is working and he goes to a board and care on tuesday. Thank you for your response. I will know more tomorrow and will keep you informed.

@pamstegman, I own my home and have 7.5 acres that my son has been care taking while I have gone to take care of my father in his home because I promised to do so. I also took care of my mother, also at their home, before she died. So sorry but I am fully capable of getting a job. I am fighting for my dad's right to come home, as all of us have promised him we would never put him in a home. I can only hope you don't always use this site for mean spirited comments as a way to get your kicks. My father has many friends who would not be able to visit him if he were 3.5 hours away.

PBassett, any news?

@countrymouse, I have contacted my father's primary Dr. I have sent him my resume to clear up the ability to work as well as emails and voice mails from his friends, showing their concern after visiting him as well. The primary is on vacation, of course, but will consult with me tomorrow afternoon. He can go in and check records, meds, etc. and determine whether a reversal of competency can be done. He is the only one who can go over my sister's head. A good friend of the primaries, another Dr. and friend of Dad, is on board to consult. This seems to be the best chance. It has been heartwarming to see how many of Dad's friends see so much life left in him and are appalled that this is being done.

Sounds promising! - I'll keep my fingers crossed.

Just in case, though, don't get excited until you hear back from your father's GP. I hope it'll be good news, but you don't want to count your chickens. Let us know how it goes?

So sorry if I offend you pbassett. Hope it all turns out for the best.

pbassett77, sometimes we will tell our elders that we would promise to take care of them, but that conversation is usually at a time when everyone is doing well, no major health issues, clear heads, and able to care for themselves.

I hope your Dad can once again return to his own home, and live there for as long as he is capable.

hi pbassett77,

Apologies if I've missed some of the useful things people have said in the responses. Just wanted to mention that "competence" is usually determined by the courts, and that on their own doctors are just supposed to assess a person's ability to make medical decisions. We are occasionally asked to provide a letter or opinion to someone else, like a bank or a court or an assisted living facility, but as far as I know, on their own doctors cannot make someone globally "incompetent" and allow family to take over all their rights. (That said, when an older person is obviously very impaired, everyone will act as if family has the right to take over decision-making, but that can be contested.)

If you have the time and energy for a fairly technical resource, the American Bar Association and the American Psychological Association collaborated on creating "Assessment of Older Adults with Diminished Capacity" resources. One is a guide for lawyers, and the other is a guide for psychologists who are asked to weigh in re competence.
http://www.apa.org/pi/aging/programs/assessment/capacity-psychologist-handbook.pdf

Believe it or not, psychologists and doctors are often not familiar with the law, or the "best practices" on how to handle these situations.

Everything kind of varies state-by-state, but the info might help you think of how to frame the questions.

Unfortunately I haven't yet come across a similar resource that's written for family caregivers...maybe someone else can speak up if they know of one.

good luck!

http://www.apa.org/pi/aging/programs/assessment/capacity-psychologist-handbook.pdf