He continues to discharges from hospital to his home instead of facility. His wife recently passed and she was fulltime caregiver and he unreasonably assumes me and sister can now do everything for him at home. This man is incontinent, had never paid a bill, cannot clean or even fix a sandwich. He uses a rolling walker or wheelchair, cannot use a computer, and is not on the home title or mortgage. We entered probate to try and accomplish. I’m at wits end.
If your POA is immediate, I don't think you need a declaration of incompetence. The medical you may need to invoke. Since these facilities seem to think he can make his own decisions, I would get him declared incompetent. When I set him up in another one, I would tell the facility that he is not capable of caring for himself. That there is no one willing to care for him and there is no house for him to go home to. He would be an "unsafe discharge".
If he is not on the deed and Mom made no provisions in the Will for him (like he could live there until his death ), then you may need to evict him. Usually when a provision is made in the Will, the person must be able to pay the bills, mortgage, taxes and upkeep on the home. If this man can't, then he can't remain in the home. I would talk to a lawyer and see what your rights are if Mom is allowing him to remain in the house. If no provisions were made, then you may have to go through a formal eviction.
If he is an unsafe discharge, you and your sister as his legal represenative POA and MPOA, it is YOUR jobs to make sure the hospital knows that he is an unsafe discharge and that there's no one to care for him at home.
I'm sure neither you nor your sister agreed to being POA/MPOA out of the goodness of your hearts for nothing. So, if your POA/MPOA is now active you're calling the shots. This means making his medical decisions, making sure he is adequately cared for (either at home or in a care facility) and acting in HIS best interests financially (not your own) by paying his debts and using his money in the best way possible that benefits him. This does NOT mean you have to literally take care of him yourself.
You can resign POA/MPOA very easily if you or your sister don't want to do it. All it involves is a trip to the probate court to get yourselves removed. Then the state appoints a POA/conservator over him and he becomes a Ward of the State. Then a court-appointed person sometimes a lawyer sometimes a social worker would be making his medicail decisions and would have control over whatever noney or assets he has.
Is this man competent?
Then you say this: "We entered probate to try and accomplish ......."
a) What does Probate have to do with a living person; probate occurs after death? I am GUESSING that you are trying to arrange probate on a home that this male wishes to occupy. Are you really willing to kick this man out of your mother's home to the streets in his current condition?
I am assuming, anyway, that the probate you are doing probate is for your mother's home. That she left said home to you and sister. And you want it NOW. Did she leave anything to this other mystery relative you are POA over?
b) You say "we". Are you and Sister both the POA or is one POA/MPOA and the other is the second? And then ONE of you is the EXecutor and managing probate of a will of the mother's estate? I am finding this a puzzle impossible to untangle.
"Mystery relative" may be incontinent. He may be using walker and W/C. But that doesn't mean he cannot manage at home without help. And if he is COMPETENT he can leave his facility and he can re-enter what was his home, and he can get his own attorney and handle his own rights (if any exist) to this home during his lifetime.
This is one VERY COMPLICATED case. And I can't know what's up with all of this, what the will stipulates, whether this is your Dad or a second husband, or a brother who is incapacitated, nor what the state says about his right to be in this home, and etc.
As you are already working on a probate, and as this is complicated, surely you have an attorney?
I would lean on that attorney for answers and for options. But do know that if this man is competent, you can't just shove him into a nursing home and get mom's house sold without correctly taking all legal steps in your state. If he is incompetent and you are POA he can't leave. If he is competent he can leave, and there's nothing you can do about it, but then the wonder is that you got him in the facility at all.
Wishing you luck and hoping you will update us.