How can I assume POA status of my mother away from her irresponsible and disreputable husband?

Step-father for 15 years. She is 67; he is  50years. My mother’s health is concerning and she has no insurance. I need to be prepared to make the necessary funeral arrangements and set-up payments. Her husband (my stepfather) told me he made her arrangements three yrs ago, but upon contacting the funeral home, I was informed arrangements were solely made for him and not 1 payment has been made. Since he found out I was investigating their plans, he arranged that the funeral home could only discuss the situation with him. He hasn’t worked for over 10 years and has no income. I want to be assured Mom has a proper burial.

Asked on July 21, 2010 under Estate Planning, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

I doubt very much whether or not you can assume this power or authority.

1) Even if your mother is ill, as long as  she has her mental facilities, no one--not even her husband--can make decisions for her. She'd have to be judged to be legally incompetent before someone can make decisions and exercise authority on her behalf.

2) Even if you mother were incompetent, her spouse would be the one to exercise the power, unless

a) you show that he, too is incompetent; or

b) you show that he is actively harming her health or defrauding her; merely not acting as responsibly as you believe he should is not grounds for taking away one spouse's right to make decisions for an incompetent spouse.

In short, it would have to be an extraordinary chain of events to get you the authority you like.

You can certainly try to facilitate things for your mother; e.g. nothing says you can't offer to buy the plot and make the payments, arrangements for them, and if they let you do that, do so.


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