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

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?

@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.

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.

@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.

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.

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.

"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?

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.

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.

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?

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

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.

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?

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.

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.