Hurricane, UT asked in Elder Law for Utah

Q: If my brother who has POA for 93 year old mother is threatening to take my mother out of the country, is he able to. Dem

She has elderly family there but her immediate family mostly live in Calif. My brothers signed to allow him to take her home as payment to care for her. I never agreed or signed. Any options?

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1 Lawyer Answer
Wesley Winsor
Wesley Winsor
PREMIUM
Answered
  • Elder Law Lawyer
  • Saint George, UT
  • Licensed in Utah

A: Hello,

Is your mother incapacitated? Has she been diagnosed with dementia, Alzheimer's etc? If she is still considered capacitated, then she can choose for herself whether to go out of the country. If she isn't, then a power of attorney is not the correct document/authority your brother would need to enforce his "right" to determine where she will live.

The correct authority would stem from either an Advance Health Care Directive that was signed when your mother had capacity (if she doesn't now) or court-appointed guardianship. Right now if he is moving her and taking her places, he is doing so by virtue of his influence over her or her consent. If you want to stop him from doing so and become the legal guardian of her, you will need to file for guardianship over her at which point if appointed then you would have the legal right/obligation to determine the best place for her.

This is not a "kidnapping" situation unless he is doing these things against her will. You will not be able to file a guardianship in Utah unless your mother is in Utah, if she is in California you will need to file there, which will be considerably more expensive.

I hope this helps.

Wes

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