Can a person that has been put in an assisted living facility sign himself out if he was put there against his will?

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Can a person that has been put in an assisted living facility sign himself out if he was put there against his will?

My brother put my dad in an assisted living facility against his will and is serving a trespassing notice on

anyone who comes to visit to try to talk to my dad. He is not incompetent and says that he does not want to be there.

Asked on March 1, 2018 under Estate Planning, South Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

If your father is mentally competent, he can sign himself out whenever he likes: a mentally competent adult can go where he wants. He can do so even if your broker has a power of attorney: a power of attorney lets the recipient of it (the agent or attorney-in-fact; either term may be used) act for the principal (the person who created the POA) BUT the POA does *not* overrule the principal: the principal can still do what he wants. 
A POA, after all, is not a court-appointed guardianship or conservatorship for someone who is mentally incompetent; it does not take away the person's authority to act for himself. Giving someone a POA is like the owner of a small business hiring a manager to help him out: the manager may make decisions for the business, sign agreements, pay bills, etc. but cannot overrule the business's owner, while the owner can overrule the manager he hired at will.
And a POA *can* be easily revoked: all it takes is drafting a new document, signed and witnessed the way the POA itself was, which states that the POA has been revoked. (Again, similar to how the owner of a business can demote or fire a manager he hired at will.) The document revoking the POA should be sent to anyone you know of who had been dealing with the agent/attorney-in-fact, so they know that going forward, the agent has no more authority.


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