Power Of Attorney Over Mom: Step Children versus Biological Son Backdrop: A Florida woman informally separates from her second husband. They have not lived together for years. The woman a mother had one sole biological son from a prior marriage. She was a step-mother to her second husband's 7 children but never adopted any of them. After the separation, she maintains contact with her adult stepchildren. The woman has been diagnosed with several health-related issues: high blood pressure, diabetes, and neuropathy. In addition to that, the woman has a family history of dementia. The biological son and mother have decided to be proactive and pursue a power of attorney and a living ( -?) will. The second husband and his stepchildren have been omitted from all of those items. Question: Given that the woman is not legally separated or divorced from her second husband, might he or her stepchildren have strong legal reasoning to protest any power of attorney or will set by the women and her biological son?
Sources Florida Power of Attorney from the Florida Bar Association is a consumer pamphlet summarizing the laws in regard to a power of attorney. The actual laws are in the Florida Code sections 709.2100 thru 709.2402 Health Care Advance Directives from the Florida Health Care Administration is a consumer guide to Living wills, surrogate designations, and related issues. Florida Living Wills Laws from FindLaw lists legal provisions related to living wills in Florida. The relevant code sections are stated as 765.101, and subsequent sections (Health Care Advance Directives). Terminology The person who makes the Power of Attorney (POA) is the principal -- the mother in the situation described in the question. The person appointed to do things for the principal is known as the agent, and is sometimes also called the attorney-in-fact. A Limited POA gives the agent power only over a particular transaction, or over a single or small number of types of transactions. One might give a limited POA to manage a particular investment, or to sell a car or a house, say. A General POA gives the agent power to do anything that the principal could do in person, or anything except for some specifically excluded things. A Durable POA remains in force even if the principal becomes incapacitated (for example with serious dementia). It includes specific language to this effect. It is usually also a general POA. Any POA that is not durable is not in effect when the principal becomes incapacitated. The situation described in the question would often be met with a durable POA. A durable POA: contains the words: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,” or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity. (Section 709.2104) A Medical POA, sometimes also called a Healthcare POA grants the agent power to make medical or health choices for the principal. It is also known as a health care surrogate designation. It is normally a separate document form a POA dealing with non-medical issues, sometimes called a financial POA, even if the same agent is appointed for each. A living will is &quot;a written or oral statement of the kind of medical care you want or do not want if you become unable to make your own decisions.&quot; (from the Advance Directives pamphlet linked above) Living wills and Healthcare POAs are collectively known as Advance Directives. The pamphlet says: [I]f you have not made an advance directive, decisions about your health care or an anatomical donation may be made for you by a court-appointed guardian, your wife or husband, your adult child, your parent, your adult sibling, an adult relative, or a close friend. Under section 709.2102: “Incapacity” means the inability of an individual to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income. Agent Any competent adult that the principal selects may be an agent. The pamphlet linked above says: Any competent person 18 years of age or older may serve as an agent. Agents should be chosen for reliability and trustworthiness. Certain financial institutions with trust powers also may serve as agents. The agent may hire assistants, such as a lawyer,, an accountant, or a realtor. But the agent may not delegate or transfer his or her powers as an agent, or appoint a sub-agent. The agent must act as instructed by the principal. When no specific instructions apply, the agent must act in the best interests of the principal, to the best of his or her understanding and ability. Creating a POA The POA must be in writing, and signed by the principal and two witnesses, and notarized. The principal must be competent when the POA is signed -- that is, must be in condition to understand the purpose and effect of the POA, and what is going on generally. (See the definitions section above.) The agent must accept the POA, and often signs the POA to acknowledge the POA and accept the responsibility of acting as agent. A POA may appoint backup agents to act if the first agent is unable to act, or resigns, or dies. It may also appoint multiple agents any of whom may act, but this can cause problems if the agents disagree. The text of a POA may be drafted by a lawyer. But there are also software programs that will produce the text of a POA, after appropriate information is entered and questions are answered as to the desired effects. Such programs normally produce text tailored to ma particular state's laws. Ending a POA The principal may revoke a POA at any time, if the principal is competent. A principal may also revoke a living will or other advance directive at any time. The agent may resign at any time If either agent or principal dies the POA is ended. (If a POA appoints multiple agents, it ends only if they all die or resign.) If the agent becomes incapacitated, the agents power ends. If there is not other agent, the POA ends. If the agent is married to the principal, a divorce or separation or a petition for a divorce, ends the agent's authority, unless the POA explicitly says it will continue after a divorce or separation. If a legal process to appoint a guardian is started, the POA is suspended, unless the agent is the principal's &quot;parent, spouse, child, or grandchild&quot;. (This may include stepchild.) If a guardian is appointed, the court will rule on whether the POA continues; often it will not, unless the agent is also the guardian appointed. Florida code section 709.2109 (3) (Link above) says: If any person initiates judicial proceedings to determine the principal’s incapacity or for the appointment of a guardian advocate, the authority granted under the power of attorney is suspended until the petition is dismissed or withdrawn or the court enters an order authorizing the agent to exercise one or more powers granted under the power of attorney. However, if the agent named in the power of attorney is the principal’s parent, spouse, child, or grandchild, the authority under the power of attorney is not suspended unless a verified motion in accordance with s. 744.3203 is also filed. If the POA includes an ending date or condition, it ends when this occurs. A third party, one who is neither the agent or the principal, can only have a durable POA revoked by petitioning a court to do so, usually in connection with the appointment of a guardian. The court will do this only if a guardian is needed, and that the action of the agent under the POA is not sufficient to serve he interests of the principal; or if the agent is shown to have been untrustworthy or neglectful, or has become incapacitated. Living wills normally remain in effect unless revoked, even if a guardian is appointed. Conclusion No one has an automatic right to be appointed as the agent, no matter what relationship to the principal that person has, or for how long a relationship has existed. The principal may choose any agent that s/he trusts and thinks will be able to do the job well. The husband or stepchildren described in the question will not be able to have the POA set aside by a court unless they can show that the son has not acted in the mother's best interests or has acted dishonestly in regard to the mother, or has misused the powers granted by the POA. If they can show that the son used undue influence to get the mother to sign the POA, that might cause a curt to rule against the POA. But they have no automatic claim to cancel the POA, just because they are related to the mother. The Florida laws about a POA are very similar to the laws in NJ and NY that I have had occasion to deal with before. I held a durable POA and a healthcare POA for my father, who lived in NY state.
In england-and-wales this would fall within the Mental Capacity Act 2005 and depends on whether he lacks the mental not physical, capacity to make the decision for himself. Can he: Understand the information relevant to the decision Retain that information Use or weigh that information as part of the process of making the decision Communicate that decision (whether by talking, using sign language or any other means). If the answer to any of these is&quot;no&quot; then he cannot lawfully give true consent. Although the Act allows for others, such as a power of attorney, to make decisions on behalf of someone lacking the mental capacity, s.27 specifically excludes the decision to marry.
In addition to the general considerations of (1) who is allowed to use non-deadly physical force to maintain order in a shop (which I think that one could do if "deputized" by the property owner or to protect the property of another as well), and (2) the use of non-deadly physical force to make a citizen's arrest (which many of these scenarios would justify as the disorder would be a crime if committed by an adult), (3) I suspect that there is also some point at which a bystander may intervene to prevent harms associated with an unsupervised minor being at large and in need of supervision. Generally speaking, intervention with the minimum reasonable non-deadly physical force to prevent property damage, or an assault, or a threat, is going to be permissible. As to the third reason: for a mentally normal ten-year-old that might be a stretch; for a four-year-old or a clearly impaired older child it might not. One could approach the child, say, "where's your mom or dad", "do you have a babysitter or sibling around?", "what is your name?", or "are you lost?" and detain the child until a satisfactory answer is provided or a suitable authority arrives, to prevent the problem of a child being lost, abducted or hurt by the child's own actions. It would be quite hard for a parent, guardian or babysitter to complain about this kind of conduct when the child was unsupervised and is released as soon as you confirm that this really is a responsible adult or older minor who is responsible for the child. It would be important in doing so to not secret away or isolate the child, to try to determine the location of the child's caretaker, to refrain from doing anything that would harm the child, and to seek assistance from an authority within a reasonable time. Typically, if no caretaker appeared, a cop would come and the cop would oversee the situation until a social worker could come. For example, Colorado has the following statute that would apply once a cop arrived (omitting lengthy provisions that apply to newborn children): § 19-3-401. Taking children into custody (1) A child may be taken into temporary custody by a law enforcement officer without order of the court: (a) When the child is abandoned, lost, or seriously endangered in such child's surroundings or seriously endangers others and immediate removal appears to be necessary for such child's protection or the protection of others; (b) When there are reasonable grounds to believe that such child has run away or escaped from such child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has not made a report to a law enforcement agency that the child has run away from home; . . . (1.3) A child shall be taken into temporary custody by a law enforcement officer without order of the court when there are reasonable grounds to believe the child has run away from the child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has made a report to a law enforcement agency that the child has run away from home. (1.5) An emergency exists and a child is seriously endangered as described in paragraph (a) of subsection (1) of this section whenever the safety or well-being of a child is immediately at issue and there is no other reasonable way to protect the child without removing the child from the child's home. If such an emergency exists, a child shall be removed from such child's home and placed in protective custody regardless of whether reasonable efforts to preserve the family have been made. (2) The taking of a child into temporary custody under this section shall not be deemed an arrest, nor shall it constitute a police record. A child is considered neglected or dependent under circumstances including the following (provisions related to drug or alcohol abuse by parents omitted): § 19-3-102. Neglected or dependent child (1) A child is neglected or dependent if: (a) A parent, guardian, or legal custodian has abandoned the child or has subjected him or her to mistreatment or abuse or a parent, guardian, or legal custodian has suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring; (b) The child lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian; (c) The child's environment is injurious to his or her welfare; (d) A parent, guardian, or legal custodian fails or refuses to provide the child with proper or necessary subsistence, education, medical care, or any other care necessary for his or her health, guidance, or well-being; (e) The child is homeless, without proper care, or not domiciled with his or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian; (f) The child has run away from home or is otherwise beyond the control of his or her parent, guardian, or legal custodian; I don't have easily at hand legal authority authorizing a third-party who is not a law enforcement officer to take custody of a dependent or neglected child until a law enforcement officer arrives, but I strongly suspect from the context that this is allowed either under common law, or a statute that I have not located, or some legal fiction (e.g., that the citizen is implicitly deputized by the law enforcement officer after the fact), or simply as a matter of custom and ordinary practice not codified in any authoritative legal source.
Yes The only accurate thing in the linked article is: &quot;I am not a Constitutional lawyer.&quot; That could be taken further into &quot;I have no real idea how our legal and political systems work.&quot; One of the tasks of the Massachusetts Supreme Judicial Court is to interpret the laws of Massachusetts including the Massachusetts Constitution. In Goodridge v. Department of Public Health the court decided that the Constitution provided for equal protection and due process and that if the state wished to discriminate against people on the basis of sex they needed a good reason. The reasons the state put forward were: providing a 'favorable setting for procreation'; ensuring the optimal setting for child rearing, which the department defines as 'a two-parent family with one parent of each sex'; and preserving scarce State and private financial resources. On 1. the court said marriage is irrelevant for procreation and vice-versa. On 2. they said Massachusetts law on child welfare dealt with the &quot;best interests of the child&quot; and that it is not in those interests for the state to deprive the child of benefits because it doesn't like the sexual orientation of the parents. On 3. they said equal protection means equal protection. In a common law legal system like Massachusetts where courts have the power to strike down legislation then that takes effect as soon as the decision is published. The law ceases to exist without the legislature or the executive doing anything. Now, the people of Massachusetts are free to amend their constitution to outlaw same-sex marriage or remove equal protection rights if they want. However, at the time and subsequently, the majority don't want.
Usually and ideally, a GAL would take an active role in parenting questions, while taking a secondary role in property division and maintenance with the primary concern being that the economic arrangements are sustainable and don't subject the child to hardship when with the other parent (e.g. many divorcing parents fail to realize that maintaining two households will result in more child related expenses than one). I will assume that you are asking from the perspective of a party to the divorce and not from the perspective of a mediator, although the phrasing is not entirely clear. Some basics: Have a good command of the facts about your finances, your ex's finances, and the children's schedules and needs (assuming that there are children). For example, it would be good to have school calendars as far forward as they are available, to know the children's medical providers, and to have a firm command of their extracurricular activities, their friends and the requirements of any childcare providers. Often child support worksheets will be mandatory for a settlement to be approved, so get those worksheets and fill in the facts you know already. Bring a calculator so you can consider new assumptions and evaluate financial proposals accurately. If you think you have received inaccurate disclosures, be prepared to explain in detail what you think is inaccurate and why you think that this is the case. If domestic violence has been an issue, there are restraining orders that are or have been in place, there are abuse or neglect allegations present (including emotional abuse of a spouse or children), or the co-parents have had trouble coordinating and reaching decisions without outside assistance, be prepared to explain these situations in factual detail so you can avoid summarizing the situation in a vague way. Bring anything you might need to refresh your recollection about relevant facts with you to mediation. If you haven't received full disclosure of your spouse's finances, insist on receiving that, ideally before going to mediation and absolutely before reaching a deal. Spend time considering possible resolutions of property, maintenance and parenting matters in advance. Very early on in mediation each of you will be asked what you want and mediation shouldn't be the first time that you have thoughtfully considered the question. Spend time thinking about what you need on a non-negotiable basis to survive - to be able to meet basic needs for food, shelter, clothing, health care, etc. for you and your children, and also about what your ex needs and how your ex can achieve it. Proposing ways to achieve objectives that your ex hasn't considered that are viable is a good way to get a resolution. Ideally, attend a parenting class (mandatory in many jurisdictions before getting a divorce that involves children) before attending mediation. Keep in mind that children are not prizes or bargaining chips and that you need to consider their needs as well as your own. Your kids love both of you even though you can no longer manage to live with each other. Do not utilize the children as sounding boards for mediation stances and do not try to use them as decision makers or conduits for communication between the co-parents. Recognize that in most states, marital fault is irrelevant, and that starting a new relationship is natural and routine, even if it makes your skin crawl that your ex is starting a new relationship. Take an attitude of focusing on what the deal does for you rather than what the deal does for your ex. This is about you getting what you need, not about making your ex worse off. Be prepared to walk away from mediation without a deal if necessary, because your ex won't accept a reasonable deal. Maybe half of mediations end without a settlement. Recognize that it may be possible to reach partial resolution (e.g. splitting up tangible personal property; figuring out how holidays will be handled with the children; agreeing on schools that children will attend; figuring out who, if anyone, will continue to live in a marital residence; stipulating to the value of particular assets; stipulating regarding each party's income; stipulating regarding what is and isn't separate property where you can agree; agreements to disclose information), without resolving all issues. Partial resolutions reduce uncertainty and make it easier to prepare for and conduct a permanent orders hearing on the remaining issues. Even if you can't afford to hire a lawyer to represent you in the entire case, pay for an hour or two of a lawyer's time to evaluate what kind of property division, maintenance award and parenting arrangements are within the range of the possible and likely if you go forward to a permanent orders hearing. Be prepared to put the terms of anything that is agreed to at mediation in writing. Mediators will usually tell you if they need forms signed, payments made, or a "mediation statement" in advance. Do everything required on time. A "mediation statement" is a summary of the key facts and your position on a fair resolution and could be a couple to a dozen pages depending upon the complexity of the case. Be clear in a mediation statement about what is O.K. to share with the other side and what is for the mediator's information only. When a mediator asks for a mediation statement the main reason for doing so is to save time that the mediator is charging you per hour for 50-50. A mediation statement can make getting the mediator up to speed on the facts more efficient and less likely to omit important facts and the mediator needs to learn the key facts to be effective.
What factors might a court consider in these circumstances? Is it true that anyone can just walk up and file a document in any case, with no requirement to identify themselves? If nobody admits to filing a document, it is likely that the court would grant a motion to strike the document and disregard it (revising a past ruling if the issue was raised within the six months allowed for reconsidering rulings under Federal Rule of Civil Procedure 60(b) or the state equivalent). A court document must, on its face, indicate a filing person and be signed to be accepted by the clerk of the court pursuant to Federal Rule of Civil Procedure 11 or the state equivalent. But, if the document appears on its face to be legitimate, the person filing it will not generally be required to prove their identity. This happens even less often now than it used to (in the past, fake filings were often made by members of "sovereign citizens" movements to harass governmental officials), because in both the state courts were I practice and in federal court, documents must usually be filed with the court by lawyers via e-filing using a password protected e-filing account. Usually, only parties without lawyers and out of state lawyers who are still in the process of setting up their e-filing account file court documents in person. When documents are filed in person, they are also often delivered via courier rather than by the person who actually signed the documents. And, as a matter of practical reality, third-parties almost never file fake documents in court (in part, because there is usually someone present who is in a position to call attention to the fraud to the court). Still, this can happen, although it is very rare. I've only seen a situation like this come up once in twenty years of practice. (My account below oversimplifies some of the technical details of what happened to get to the gist of the points relevant to this question.) In that case, a lawyer was representing an ex-husband in a post-decree alimony modification case that had been appealed filed a bill of costs that she sought to recover on behalf of her client for the appeal, but she filed it in the wrong court (she filed it in the appellate court where she had represented her client, rather than, as required, in the trial court where another attorney had represented the ex-husband). When an order awarding him costs was not entered by any court, the ex-husband filed an (untimely) bill of costs in the trial court under his appellate lawyer's name using the appellate filing as a model, without her consent, by forging her name on the document. The lawyer didn't discover this (because she was retained only in the appeal and had never entered an appearance in the trial court and thus didn't have access to the trial court file, and because the court doesn't automatically send you a copy of your own filings) until I responded on behalf of the ex-wife to the forged bill of costs alleging that it was untimely which I served a copy of upon the ex-husband's lawyer as required by the rules. At that point, the ex-husband's lawyer immediately called me and the court to explain that she did not file this document and that it was forged (otherwise should could have been sanctioned for knowingly filing the bill of costs knowing that it was out of time and was frivolous at that point and could have been deemed to be responsible for further trial court proceedings of the ex-husband in the case, like keeping him appraised of deadlines, court rulings and filings by other lawyers in the case, since it appeared that she'd participated in the trial court case). Ultimately, the court declined to award the costs because they were filed in an untimely manner and because they were not really filed by the lawyer as claimed. So, the the court disregarded the bill of costs and denied this relief to the ex-husband. (If I was the judge, I would have hauled the ex-husband into court and held him in contempt of court sua sponte, but in this very busy court where hearings in divorcees are often scheduled two or more years out from the scheduling date, the judge didn't have the time to devote to issues like that.)
Conditions stated in a will should be objectively verifiable, to avoid later ligation of the "yes he is / no he isn't" type. In this case, it would appear that your concern is over the beneficiary not actually being competent to take care of themselves. The courts often have to make that judgment, when a party seeks conservatorship over an adult. So it seems that the situation you are addressing can be summarized by saying "has not been found legally incompetent". You should discuss with your attorney what the exact wording ought to be, and also whether that describes your actual intents. For example, the description of disqualification probably should not include execution of a temporary power of attorney for a specific purpose, nor would it include a DNR order. Hiring an attorney who knows the terminology would steer clear of vague or mistaken terms.
No To declare that a parent is &quot;unfit&quot; in the US requires at least a decision by a government agency (often called &quot;child protective services&quot; or &quot;child welfare&quot; depending on the state) usually confirmed by a judge. Medical testimony may be persuasive, but neither doctors nor hospitals may make such determinations.