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Some of you may recall some dairies that I wrote which I link here in which I requested the advise from this community on behalf of my sister who lives in San Antonio, Texas. I am in Wisconsin and I come again before you full of confidence asking for your help again. I got the request that I will put forth before you below from my sister over the phone yesterday.

The issue today is whether or not, there is legal case law in the books pertaining to my sister`s situation in dealing with her son Tony who is medically incapacitated to initiate and prosecute a divorce between Tony and his wife? Like most legal situations in our society, I have to think such law precedent must be out there somewhere and I would appreciate a citation or case number.

Before I request your assistance and/or opinions and before I make the meaning of this diary perfectly clear, I think it is only appropriate that I go into explaining why I seek this advise -- for those who for the first time read and learn about my nephew`s accident and what my sister has gone through as a result.

It has been eight months since my sister`s son Tony fell into a coma and has not awakened. Eight months ago back in February I wrote this diary and followed up the next day with this other diary and the advise this community unselfishly and compassionately gave for my sister through the comments section of my diaries will never be forgotten.

Tony is still alive but unresponsive. My sister insists that he blinks his eyes and I tell her it is good news, although personally ( and I won`t dare tell her), I feel the situation with Tony sounds bleak. My heart cries each time we talk about Tony and what she is going through.

Talking to her briefly on the telephone from my home in Milwaukee. She was in a haste to get to Tony`s bedside like she has done since the first day of the accident. She has not missed a day and she sounded exhausted, mentally and emotionally. Everyone of his siblings who in my linked diaries I described at first, appearing so supportive of my sister have now abandoned my sister and Tony. She now carries the pain alone.

I wrote this diary back on May 7th that depicts my sister having armed herself with power-of-attorney on behalf of Tony assuming that she could call all of the shots legally on how her son`s medical situations should be applied.

Much was discussed in the comments section about the legalities and the rights that my sister had or did not have pursuant to her contention of power-of-attorney as described in the documents she obtained notarized from a public notary at that time. All the issues that were discussed here are now moot where at the time the issue was whether or not Tony could had legally been kicked out of the hospital on short notice after brain surgery.

As noted, Tony was indeed transferred from the hospital to Casa Rio Health Care Rehabilitation where he currently is institutionalized. That is the place where my sister is obviously at his bedside as I write this.

I think that despite the mootness of the issues discussed above that pertained to the linked diary, there remains the issue of the power-of-attorney that arises with this new question I bring to you today. Bear with me as I try to explain my confusion as to the legitimacy and question of standing for my sister to prosecute Tony`s divorce.

To wit:

Tony and his wife had been separated for more than a year before he went into a coma. His wife, previously married at the time of Tony`s accident had returned to her previous husband and remained there, and was there when Tony went down.

With troubling mental disorders legally recorded by Psychiatrist`s diagnosis, and treatments which included her institutionalized periods in a mental ward the women injected herself into the decision making process of Tony`s care at the hospital over my sister`s objections.

As noted earlier in the linked diary, Tony was discharged from the hospital and taken to rehabilitation care at Casa Rio with his wife`s blessings. She signed the release order. My sister went bonkers over this.

Granted, I do not pretend to assume the wife, any wife loses the right to make medical decisions for her husband. Here however, my sister think Tony`s wife did not have that right and thinks their separation for a year and her decision to return to a former marriage should have disqualified her as having any further decision making over Tony. Her actions pursuant to separation period, mental condition among issues should had barred her from medical decisions over Tony.

As I noted above, my conversation with my sister was brief as she was in a haste to get to Tony`s bedside that morning. So obviously the reason for her questions baffles me as our conversation was short and no reason was mentioned.

However, by what I have learned from her. Tony`s wife is running a lot of troubling interfering situations for my sister to look after her son. She feels that a divorce is the only remedy remaining for Tony. She wants to know if she has standing to prosecute the required process of a divorce.

I would greatly appreciate anything you can give me so that I can relay it to her. Please link me to any case law or legal precedent that closely resembles my sister`s concerns.

Again, I will thank you from the bottom of my heart for my own and my sister`s sake.

Originally posted to Ole Texan on Thu Oct 31, 2013 at 10:45 AM PDT.

Also republished by Badger State Progressive.

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Comment Preferences

  •  I cannot offer you any advice in this situation. (11+ / 0-)

    You have my condolences.

  •  good luck to you and your sister (7+ / 0-)

    I have a feeling about what you'll hear, but I'm not qualified to say. I hope you'll get some good advice.

    Has your sister contacted a lawyer?

    This Rover crossed over.. Willie Nelson, written by Dorothy Fields

    by Karl Rover on Thu Oct 31, 2013 at 10:56:23 AM PDT

  •  I can't offer any suggestions or insights (4+ / 0-)
    Recommended by:
    David54, RiveroftheWest, suesue, Piren

    so I will send my heartfelt wishes that everyone involved in this situation can set aside their fears and focus on finding a fair and viable solution. Does the facility where Tony is institutionalized have social workers who might be able to identify resources and options??

  •  Not a lawyer (15+ / 0-)

    but I have worked in a hospital as part of the ethics committee.

    If I remember correctly, she needs to see a lawyer and try to get guardianship granted to her. Legally, his wife has all the cards unless the son gave your sister power of attorney for health care BEFORE his accident, while he was still able to make decisions.

    Do yourself a favor and send her to a lawyer. Her children have distanced themselves because she sounds as if she is consumed by this. She is putting a lot of pressure on you to solve problems that you cannot solve and you do not need the pressure..

    Get her to talk to a lawyer and find out (from someone other than you) what is possible and what is not possible. Give her money if necessary but there are lots of free/inexpensive ways to just talk to one to see if there is a case or not. Maybe enlist one of her children to take her to a lawyer. She seems not to be listening to anyone in the family except you unless they agree with her. She is killing herself and it will not help her or her children.

    Sorry to sound so tough but enabling her wishful thinking is not really helping her or you. Good luck and peace to you.

    "Life is a series of collisions with the future; it is not the sum of what we have been, but what we yearn to be." Jose Ortega y Gassett

    by CorinaR on Thu Oct 31, 2013 at 11:14:07 AM PDT

    •  CorinaR, believe me (7+ / 0-)

      you do not sound too tough at all. You are true. I agree with all you say.

      I can only tell you that no matter what my sister puts me through in the name of pressure, I will take it any time.

      But you are absolutely right. I agree that she needs a lawyer if indeed that is her quest. I will send this link to her as soon as I hear from her today.

      I have additional information to pass on to her as shown in the comments to my questions as this is what she asked me to do. She must be made face reality and the consequences if she insists on wanting to do this.

      Thank you CorinaR. my confidence in this community will never waver. Folks like you inspire me.

      Old men tell same old stories

      by Ole Texan on Thu Oct 31, 2013 at 12:05:02 PM PDT

      [ Parent ]

  •  Power of Attorney (10+ / 0-)

    Does your sister have General (or FULL) Power of Attorney or is it a Specific (or Special) Power of Attorney agreement?

    If it is General POA then theoretically, yes, she can file for divorce, but two things

    a) General POA is rare.  That is a crazy hell of a lot of power to give to someone.
    b) Some courts (or banks or other companies) will try to refuse initiating something this significant with out a specific power of attorney statement.  It would be one thing if Tony filed for divorce and then went into a coma... then your sister would be in complete control to sign and process everything regarding the divorce.  ...but to start it?  She may get some push back.. this is usually more with private corporations and financial institutions, the courts themselves may be content with a GPOA.

    But... to supercede all of this, if the underlying issue is medical conditions of a coma patient, particularly if the issue is a life-or-death decision about treatment, the courts might weigh in more heavily on the "best interest of the patient" rather then just on the question of "who does or doesn't have the authority to say what happens to Tony" regarding his marriage, his treatment, his location or anything else.

    Красота спасет мир --F. Dostoevsky

    by Wisper on Thu Oct 31, 2013 at 11:16:00 AM PDT

    •  In short (6+ / 0-)

      If she is that upset/concerned... her POA (unless specifically proscribed to a limited number of faculties not including divorce) would certainly allow her to file for divorce.

      She just should be prepared that once this lands in front of a court, NOTHING about this is going to be open and shut based on her POA or Tony's wife's marriage certificate.

      If she's got a true signed GPOA I think she should prevail, but she should be prepared for one hell of a fight if the wife wants to fight it.

      Красота спасет мир --F. Dostoevsky

      by Wisper on Thu Oct 31, 2013 at 11:19:09 AM PDT

      [ Parent ]

    •  Wisper, to your first question, (4+ / 0-)
      Recommended by:
      RiveroftheWest, greengemini, suesue, Piren

      I do not know:

      Does your sister have General (or FULL) Power of Attorney or is it a Specific (or Special) Power of Attorney agreement?
      All I know is that she went to a notary public who drew out a document "assuming I guess" to give her power of attorney to dictate how the hospital conducted her son`s treatment and to argue that her son should not have been kicked to the curb so soon after brain surgery.

      What I do not know is the meaning between (General or FULL) power of attorney, or (Special) Power of Attorney. She made me believe that what she had granted her full power, but I do not know.

      Like I said up-comment, I am sending her this link of the comments and yours will surely be examined and hopefully it will assist her in her question.

      Thank you Wisper, a lot.

      Old men tell same old stories

      by Ole Texan on Thu Oct 31, 2013 at 12:13:06 PM PDT

      [ Parent ]

  •  You need to put your sister in touch with (12+ / 0-)

    a Texas Department of State Health Services counselor / adviser -- maybe more than one, actually.
    In Bexar county, he's Region 8. San Antonio's a good spot for this to be going forward in, really, because there's a regional headquarters there.
    Lillian Ringsdorf, M.D., M.P.H, Regional Medical Director
    Gale Morrow, Deputy Regional Director
    Regional Headquarters: 7430 Louis Pasteur Drive, San Antonio, Texas 78229, Mail Code 5716
    Phone: (210) 949-2000     FAX: (210) 949-2015
    Map to Region 8 office     Web site

    Legally speaking, I'm pretty sure that unless there's a legal separation document on file (or a court order to protect one spouse in a domestic violence situation) there's nothing barring the wife's handling decisions instead of the mom in a case like this. However, if he's permanently disabled (and it sounds like he is) there may be other services / protections available. DADS or MHMR should be consulted either way.
    Here's a place to start:

    The Center for Health Care Services
    3031 IH 10 West
    San Antonio, TX 78201
    Crisis Phone: 210-227-4357
    Main Phone: 210-731-1300

    LBJ, Van Cliburn, Ike, Wendy Davis, Lady Bird, Ann Richards, Barbara Jordan, Molly Ivins, Sully Sullenburger, Drew Brees: Texas is NO Bush League!

    by BlackSheep1 on Thu Oct 31, 2013 at 11:19:08 AM PDT

    •  Thank you all (4+ / 0-)
      Recommended by:
      RiveroftheWest, greengemini, suesue, Piren

      above comments. I am waiting for my sister`s call. I reached her but she was driving to Tony`s. She will call as soon as she can.

      I will come back and manage this diary as soon as I send her this link to the address she provided to me earlier.

      I will come back, I promise.

      Old men tell same old stories

      by Ole Texan on Thu Oct 31, 2013 at 11:35:41 AM PDT

      [ Parent ]

    •  This is good stuff here BlackSheep 1. (5+ / 0-)

      I do not think, however, that any document (or a court order to protect one spouse in a domestic violence situation) exsist.

      This information with the links you provide will come handy and I know my sister will be very appreciative.


      Old men tell same old stories

      by Ole Texan on Thu Oct 31, 2013 at 12:26:04 PM PDT

      [ Parent ]

      •  I worked for a lifetime for DSHS a few years (1+ / 0-)
        Recommended by:

        ago. Toughest non-combat job you'll ever have, public health epidemiology surveillance.

        There are good folks in the DSHS. Good folks at DADS. Good folks in MHMR.

        Not nearly as soul-killing as winnowing out "eligible" forms of cancer at a Komen/American Cancer grant program, but tough.

        LBJ, Van Cliburn, Ike, Wendy Davis, Lady Bird, Ann Richards, Barbara Jordan, Molly Ivins, Sully Sullenburger, Drew Brees: Texas is NO Bush League!

        by BlackSheep1 on Thu Oct 31, 2013 at 06:47:27 PM PDT

        [ Parent ]

  •  There is generally a point in proceedings of this (4+ / 0-)

    kind where voice communication, for a variety of reasons, becomes inadequate and possibly counterproductive. At that point, written communication becomes the better vehicle, whether it's intrafamily or with advocates.

    In general, writing enables both parties to organize their thoughts (always do at least one edit), provides a record to refresh memories in changing circumstances and minimize subsequent finger-pointing (e.g. do you remember precisely what you, your sister, and the wife said 7 months ago?. Your diaries provide some of that, I suppose, but it's not clear if the others have seen or agree with them, as would be clear in regular bilateral written communication over time.).

    •  absolutely valion, as I (4+ / 0-)

      mentioned in the diary. My sister was in a haste to be at the side of her son when our conversation was cut short.

      I sat there thinking, dang, I should have asked this or that, but did not have time. So yes you are absolutely right about voice communication as apposed to the written communication becoming a better vehicle.

      As much and as many times I speak with her on the phone from such a long distance that separates us, I always miss or forget to say something. On the other hand, writing I take all the time I need to say what I must.

      In this manner I have managed to understand her situation rather well. But you are right, I agree with your comment.

      Thank you

      Old men tell same old stories

      by Ole Texan on Thu Oct 31, 2013 at 12:35:00 PM PDT

      [ Parent ]

  •  Texas surrogate Decision Maker law (8+ / 0-)

    Disclaimer: I am not a lawyer.

    According to section 313.004, the priority goes first to the patient's spouse; siblings are last on the list, along with clergy or other family members.

    However, the priority can be challenged based on the next paragraph:

    (b)  Any dispute as to the right of a party to act as a surrogate decision-maker may be resolved only by a court of record having jurisdiction under Chapter V, Texas Probate Code.

    If the current spouse is living with someone else and has been since before the accident, the right of challenge should be reasonably seen.

    Definitely need to lawyer up, but there's a reasonable chance of success.  Good luck.

    •  Richard O thank you for (2+ / 0-)
      Recommended by:
      RiveroftheWest, greengemini

      the link and good information (b).

      I think Tony`s wife forfeited her right as a spouse (but unfortunately that is not how it works in law) when she resided with her former husband when Tony had the accident that resulted in Brain surgery.

      I too believe success would come if somehow my sister can challenge this in a court proceeding -- with a lawyer at her side of course.

      Thank you

      Old men tell same old stories

      by Ole Texan on Thu Oct 31, 2013 at 01:03:51 PM PDT

      [ Parent ]

  •  I think you've been given the advice you need (4+ / 0-)

    regarding the legal wrangling your sister wants to undertake.

    However, I think your sister needs help in another way also.  She needs to talk with a professional and appropriately qualified counselor about her own health, mental and physical, and the realities of her son's condition.  

    It appears that her son and his condition is the entire focus of her existance.  While that's noble and praiseworthy, she likely can't sustain this much longer and retain her health and ability to be there for her son over the longer haul if necessary.  

    The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis. - Dante Alighieri

    by Persiflage on Thu Oct 31, 2013 at 12:42:07 PM PDT

    •  Persiflage your comment has (2+ / 0-)
      Recommended by:
      RiveroftheWest, greengemini

      been in my mind for as long as this drama has been going on with my sister.

      I just cannot bring myself to burst her hopeful bubble. She is determine to see her son get up and walk home with her.

      We talk a lot about my recent heart attack and the importance of me taking my medications. She goes into great length and details telling me how she consults her own health care provider because she used to have high blood pressure.

      Her doctor praise her for her well being so I have to say that in mind and spirit  she is still pretty much there and herself complete. By this I mean her mental state is still strong.

      But I do agree and I will surely pass this on to her even though she will get to read your comment. And like she respects all the comments previously sent to her, or otherwise she would not have asked me to write this diary.

      I can surely understand your point. I agree that she needs to calm down just a tad for her own well being. But if I dared to say it to her I can clearly see disappointment in her face, that what I say is coming from me.

      Oh well.

      Thank you a lot, indeed I have all the information she needs.

      Old men tell same old stories

      by Ole Texan on Thu Oct 31, 2013 at 01:15:05 PM PDT

      [ Parent ]

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