Submitted by HRThomas on Fri, 07/09/2010 - 10:10
Posted in
I'm my mother's power of attorney. She executed her power of attorney two years ago before she started to become disoriented and confused. Now my half-sister (we do not like each other or get along) says she is going to try to be appointed as our mother's guardian. Can she do that and if she succeeds can she remove me as power of attorney?
Editor's Response
She can certainly file a petition and request that she be appointed guardian or conservator for your mother. I have no idea if she will succeed, but you can also ask the court to appoint you, instead of your sister, as guardian. You could argue that you are the better choice because your mother chose you to be her "attorney in fact" (power of attorney). Did your mom specify in the power of attorney who she would like to have as a guardian? If so, the court will certainly give her choice deference. See Chapter 201B, Section 3(b), below. If your half-sister is successful and is appointed guardian, then she can revoke the power of attorney. See Section 3(a) below. If I were in your shoes, I would certainly contact a Massachusetts attorney to help you sort through these issues. Good luck.
Chapter 201B, Section 3. (a) If, following execution of a durable power of attorney, a court appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the property of the principal or all of his property except specified exclusions, the attorney in fact shall be accountable to such fiduciary as well as to the principal. Such fiduciary shall have the same power to revoke or amend the power of attorney that the principal would have had if such principal were not disabled or incapacitated.
(b) A principal may nominate, by a durable power of attorney, the conservator, guardian of his estate, or guardian of his person for consideration by the court, if protective proceedings for the person or estate of such principal are thereafter commenced. The court shall make its appointment in accordance with the most recent such nomination by the principal except for good cause or disqualification.