Pursuant to a request from a Sergeant, I have been asked to explain what powers are granted by a "Durable Power of Attorney for Health Care Decisions," (DPOA), and sometimes known as an "Advanced Health Care Directive." A DPOA is generally a document in which one person, the grantor, gives another person, the grantee, the power to make health care and other decisions on her behalf. The fact that the power is "durable" means that it survives the mental incapacity of the grantor.

    In the not too uncommon situation, two daughters, D1 and D2, of an elderly female (Mom) live in the Topeka area. One of them, D1, has a DPOA; D2 does not. D1 decides it is best for Mom to live in a nursing home. D2 disagrees, and goes and gets Mom from the nursing home and brings her to D2's house to live out her "golden years."

    To be legal, the DPOA must be dated and signed in the presence of two witnesses at least 18 years of age, neither of whom shall be the agent (D1 in this case), related to the principal (Mom in this case) by blood, marriage or adoption, entitled to any portion of the estate of the principal according to the laws of interstate succession of this state (in other words, D1 and D2 can't be witnesses) or under any will of the principal or codicil thereto, or directly financially responsible for the principal's health care; or (2) acknowledged before a notary public. In other words, the DPOA must be signed by Mom in the presence of two disinterested witnesses, or be acknowledged by a notary public.

    I have had SRS workers tell me that officers refuse to give effect to a notarized DPOA, stating that "anyone can get a notarized document." While it is true that anyone can get a notarized document, officers need to read the document and figure out if it has any legal significance. DPOAs certainly have legal significance.

    In the situation described above, police frequently get called and advised by D1 that D2 has "kidnapped" Mom from the nursing home. When you arrive at D2's house, D2 tells you that Mom wants to stay with her. Mom often agrees, stating that she doesn't want to go back to the nursing home. Your conversation with Mom indicates to you that she may not be hitting on all cylinders, and may not understand what is going on around her. What do you do?

    As a caveat, since a DPOA is basically a private contract between a principal (in this case, Mom) and the "attorney in fact," or agent, in this case D1, the terms of any DPOA can and will govern the specific situation. However, the document often isn't available to law enforcement, so you have to make the best "legal guess" based on what the parties are telling you and based on your experience. In view of these difficulties, I will answer the question put to me based on the most common terms in a DPOA.

    By giving D1 the DPOA, Mom has appointed D1 to make health care decisions on her behalf, including where to live. D1 has the authority to make the decision; D2 and Mom do not. K.S.A. 58-269(a)(2). Even though Mom may tell you she wants to stay with D2 at D2's home, that declaration does not revoke her DPOA. In order to revoke it, she must generally execute a document with the same formalities in which she signed the DPOA.

    While D1 and D2 may disagree about where Mom is "better off," that is a civil matter entrusted to civil courts in a guardianship or conservatorship action, not by the police who are called to a possible kidnapping call.

    While I do not recommend that you take a kidnapping report, I do recommend that you advise D2 to surrender Mom to D1, who has the DPOA. D2's failure to do so in most cases will be disobeying lawful police order.

    If there is a dispute over the legitimacy of the DPOA, and the officer cannot verify whether the DPOA is valid or has been revoked, the officer should complete an incident report or adult in need of care report and notify SRS. The parties should be referred to their own legal counsel to determine disposition of the principal. In these cases, officers should not attempt to force anyone to go anywhere or with anyone against their will, unless in the opinion of the officer, the principal is in immediate danger (due to inadequate care, unavailability of necessary medication or similar factors).

Please advise if you have any questions. JJK