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I have a Power of Attorney and/or Health Care Proxy but the Baker Act facility still won’t release my loved one

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Hello, everyone. It’s Mark, and welcome back to our video newsletter.

In this video, I want to talk about the Baker Act and the power of attorney or health care proxy.

So, the power of attorney or the healthcare proxy is basically a document wherein one person gives another person authority to make decisions. For instance, I might sign a healthcare proxy over to my mother, and that would give her the ability to make medical decisions for me when I’m incapacity. In other words, when I’m unable to do so, a power of attorney may also grant certain powers to my mother to make decisions for me.

We had a family that called us recently. Their loved one has been baker-acted, and they said, “Look, we have this power of attorney, and we’ve told the Baker Act facility, and they’re ignoring us.” and I said, “Yes, I believe they are, and they will continue to do so.” and then they asked me why, and that they have documents. So let me share with you what I shared with them.

First of all, the power of attorney or the healthcare proxy is an agreement between your loved one and you. It doesn’t have the Facility’s name on it. It doesn’t involve them in any way. And, seeing as they’re not a party to it, frankly, they don’t care.
They say, “Well, we’re not a party. Why should we even bother with it? Why does it affect us?” That’s number one.

Number two, when you say that you have a document, what you have is a piece of paper with ink and words on it; that’s what you have. For those documents to have authority, to have power, they need to be recognized by a court. If you’re going to want to use them and enforce the authority they purport to give you.

If your loved one has been baker-acted, and now they are in the care, custody, and control of the state, who doesn’t care about your health care proxy or your power of attorney, you’re going to need a court order. For those documents to have real authority, if you want to be able to take control back and say, “Look, I’ve got this authority because my loved one gave it to me, and I’m exercising it.” You’re going to need a judge to say, “Facility, state, the family here has been given specific authority by their loved ones to make medical decisions for them. And I’m not going to allow you to take that authority away. Now, either you’re going to recognize this document, or I’m going to order the person released, which one is it?” If you got a healthcare proxy or a power of attorney, the only way to be enforceable and recognized is by going to a court.

And that’s why people call us to enforce their rights to make medical decisions for their loved ones. When you get baker-acted, it’s not that you’re in a facility. You’re in the state’s care, custody, and control, and they don’t care about your health care proxy or your power of attorney. But they do care about a judge’s order, and they will recognize that. So if your loved one has been Baker acted, please reach out to us. I don’t charge for a consultation. You can email me any questions. I enjoy these questions you guys have been sending us. And with that, take care and be safe.

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