Dear Mr. Premack: My mom is under hospice care, my older sister is
the POA and my mom is in my sister’s home. My sister is being as difficult
about visits from the rest of the children, who live on the east coast.
She set visitation hours as Tuesday-Friday 8-11am and 1-3:30 pm, and won’t
allow visits on weekends or Mondays. My sister is very controlling and
gets angry at the slightest provocation. We siblings are beginning to
question the quality of mom’s care. Hospice suggested respite for my
sister, and suggested that we be allowed to visit more. Can we get a court
order to visit mom? – MBR
What you can or cannot do begins with
your mother desires. If your mother is legally competent (per her doctor’s
diagnosis) then your mother should be making all of her own medical
decisions, and her own decisions about where she will live. If she does
not like the visitation restrictions imposed by your sister, your mother
can decide to move to another location, and can allow visitors as she
If your mother has lost the ability to make her own
decisions (per her doctor’s diagnosis) then her agent under the power of
attorney (POA) has legal authority which was given, voluntarily, by your
mother. However, the exact nature of that authority depends on what you
mean when you say POA. Texas law provides for:
1) Medical Power of
Attorney. This is authorized by the Health & Safety Code, and gives the
Agent authority to make medical decisions if the doctor certifies that the
patient has lost the ability to make her own medical decisions. If this is
the type of POA she gave to your sister, then your sister can make medical
decisions, decide where mom will live, and set reasonable visiting hours
(or ban visitation altogether).
2) Durable Power of Attorney for
financial and business matters. This is authorized by the Probate Code,
and deals with your mother’s money, taxes, insurance, social security,
etc. It has nothing to do with her medical care. If this is the type of
POA she gave to your sister, then your mother has not given your sister
authority over medical decisions.
If there is no Medical POA, then
the Texas “Consent to Medical Treatment Act” must be consulted. When your
mother is an in-patient or is receiving services from a “home and
community support services agency” – and hospice fits that category – then
this law gives medical control to the majority of the patient’s reasonably
available adult children. In that case, you would be on an even footing
with your older sister.
So your first task is to find out exactly
what type of POA your mother has given to your sister, and whether it
applies in this situation. Your second task is to find out if your
mother’s doctor has determined that she is incapable of making her own
medical decisions, which would activate the Medical POA (if one exists).
If one does not exist, then build a consensus among a majority of the
adult children and talk to hospice under the Consent to Medical Treatment
Act. With proper authority, that majority group may be able to move your
mother to another facility, away from your older sister.
course, it may be that your mother wants your older sister to be in
charge. It may be that there is a Medical POA to her, and that the doctor
has certified your mother incapable of making medical decisions. It may be
that this is exactly the arrangement your mother wants, in which case you
should honor her wishes. If so, you should remember that care is being
provided in your sister’s private home, and that she has no obligation to
open her home to visitors (even her siblings).
If you determine
that the care being provided to your mother is substandard – which is
unlikely given the quality standards of local hospice organizations – then
your alternative is to file for guardianship in the local probate court.
Be aware that guardianship is not an easy process, is expensive, is time
consuming and must be done properly to honor your mother’s legal rights.
If the court finds it legally proper for you to serve as guardian, then
you’ll have a court order giving you control over her medical care, place
of residence, and visitation.