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Power of Attorney
Can an unnotarized Power of Attorney allow nursing home transfer against my will?

Can an unnotarized Power of Attorney allow nursing home transfer against my will?

Q: What three decisions cannot be made by a legal power of attorney?

A legal Power of Attorney cannot make decisions regarding a principal's will, vote on behalf of the principal in elections, or make decisions that the principal has explicitly prohibited in the POA document. Additionally, any actions that are illegal or against public policy are also outside the scope of a POA's authority.

Full question:

If my daughter has a Power of Attorney for health care issues for my wife that has never been notarized, can she sign to have my wife transferred to a nursing home against my will?

Category: Power of Attorney
Date: 04/07/2025
State: National

Answer:

I cannot provide a legal opinion, but the answer depends on the document's wording. Assuming the Power of Attorney (POA) was signed in South Carolina, the South Carolina Code allows a person to create a health care POA. This document grants the agent authority to make health care decisions, including admitting the principal to a nursing home, if the principal is no longer capable of making such decisions. However, for the POA to be valid, it must be notarized. According to South Carolina law (S.C. Code § 62-5-504), a valid health care POA must include:

The name and address of the authorized person to make health care decisions if the principal is mentally incompetent.
The types of health care decisions the agent can make.
The principal's signature.
Signatures of at least two witnesses who meet legal requirements.
The attestation of a notary public.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

Does a medical POA override a spouse?

In South Carolina, a medical Power of Attorney (POA) generally grants the agent authority to make health care decisions when the principal is unable to do so. However, if the principal has a spouse, the spouse typically retains certain rights regarding health care decisions. If the spouse is not designated as the agent in the POA, they may still have a say in decisions. It's essential to review the specific terms of the POA and consult with a legal professional for clarity on individual circumstances.

What is a POA not allowed to do?

A Power of Attorney (POA) cannot make decisions that are illegal or outside the scope of authority granted in the document. For instance, a POA cannot consent to medical procedures that the principal has explicitly refused, nor can they change the principal's will or make decisions after the principal's death. Additionally, a POA cannot act in ways that conflict with the principal's best interests or wishes.

Who can override a durable power of attorney?

In South Carolina, a durable Power of Attorney can be overridden by the principal if they regain capacity and revoke the POA. Additionally, a court can intervene if it finds the agent is acting improperly or not in the principal's best interests. Family members or other interested parties may petition the court for a review of the agent's actions.

Can a nursing home override a power of attorney?

A nursing home cannot override a valid Power of Attorney (POA). However, they may require proof of the POA's validity and may have policies regarding admissions and transfers. If the agent under the POA attempts to make decisions contrary to the principal's wishes, the nursing home may need to assess the situation further, potentially involving legal counsel.

What three decisions cannot be made by a legal power of attorney?

Can a nursing home sue a POA?

A nursing home can sue a Power of Attorney (POA) if the agent fails to fulfill their responsibilities or if there are unpaid bills or breaches of contract. However, the nursing home would typically pursue the principal for payment rather than the agent unless the agent acted outside their authority or inappropriately. Legal advice should be sought for specific situations.