Can A Relative Release a Patient From a Nursing Home Against the Power of Attorney Agent's Wishes?

Full question:

My husband has had my mother-in-law's durable power of attorney for more than ten years. She is now at the stage of Alheizmer's to be cared for in a nursing home. The only other sibling is a younger brother. He is adamant about her not going to a nursing home. If my husband uses his power of attorney to enroll her in a nursing care facility, is there anything his brother can do about it? Can he check her out even though she barely knows who he is?

• Category: Power of Attorney
• Date: 04/07/2025
• State: Tennessee

Answer:

Victims of durable power of attorney (DPA) abuse or their family members often need help from the adult protective services, civil justice, or criminal justice systems to stop further abuse by the agent and to recover money, property, or other assets from the agent.

DPA abuse (sometimes referred to as POA abuse) is the misuse by the agent of the authority granted by the principal. It means making a decision or taking an action that is not in the principal’s best interest. For example, DPA abuse occurs when the agent spends the principal’s money to benefit the agent, rather than the principal. It may also include forging the principal’s signature on the DPA or coercing an order person to make a DPA against his or her wishes.

Powers of attorney, whether general, durable, or springing, usually are not subject to oversight by a court or third party. If the principal becomes incapacitated and can no longer monitor the agent’s actions, this lack of oversight for a broadly written legal document makes it very easy for an agent to abuse the authority granted.

A person interested in the principal's welfare (for example, a family member or a co-agent), can make a written request to the agent asking him or her to disclose any actions taken on behalf of the principal. If the agent refuses to comply with this request, the person interested in your welfare can bring a rt to get a court order requiring the agent to provide the requested records. It is possible the brother could also file a case in circuit court seeking an accounting from the agent, or to have a guardian appointed.

Please see the following TN statute:

34-1-123. Summons to appear for abuse, mismanagement or failure to perform — Removal — Submission of matter to district attorney general's office.
The court in its discretion may summon a fiduciary to appear before the court and may, if cause be shown, remove such fiduciary for any abuse, mismanagement, neglect or failure to perform the duties of fiduciary as set forth in this chapter and chapters 12 and 13 of this title. If the court determines the provisions of title 39, chapter 14, may apply to any fiduciary, the court in its discretion may submit the matter to the district attorney general's office.