My husband's sister got power of attorney and put a restraining order against us saying we cant go see his mom. Any advice?
My husband sister got power of attorney and put a restraining order against us saying we cant go see his mom. They didn't even serve us, went to court and got a permanent restraining order against us and we were never served.
Derek, it's just been pointed out to me by a very astute poster than I made an error in concluding your mother lived with you. I misread your profile, concluding your mother lived not alone, but with you. I can see that she is more likely living alone, which makes her more subject to your sister's "oversight."
Derek, sorry, but I just checked your profile and it states that:
"I am caring for my mother, living at home and the primary ailment is alzheimer's / dementia"
Could you explain the current situation, as if your mother is living with you, your sister has no standing to get injunctive relief preventing you from seeing someone in your own house.
I'm summarizing and elaborating a bit on what everyone else has correctly advised you. This is based on my knowledge of local court actions as they were enacted about 30 years ago (yes, it's been a while, so things might have changed, but there are some basics.)
1. A TRO (Temporary Restraining Order) might be issued under certain circumstances, depending on the judge handling TROs on a certain day. These are known as Ex Parte Orders, meaning that the defendant (the person restrained) is not anticipated to appear. Typically, they're emergency type orders, which is why they're granted ExParte. A process servicer, or perhaps a sheriff's deputy, would serve the Defendant. Family cannot serve other family members.
2. Permanent injunctions require notice to the potentially restrained party to appear at a hearing before a judge. Both parties briefly present their issues and the judge makes a decision. After that, either attorney prepares the Order, opposing counsel signs as approval (to content), it's entered, and the defendant is served.
3. Proofs of service MUST be filed with the Court Clerk; they're then a matter of record.
4. Whether or not a judge would issue a TRO requested by a proxy, or whether a proxy under a POA has the authority to apply for one, depend both on the authority specifically or generally created in a POA as well as the circumstances, alleged justification for injunctive relief, and the judge who reviews the Petition for TRO.
5. You can call the clerk of the court's office and ask if a TRO has been issued and filed, but you'll need to know the specific case name, i.e., "MIL (name) vs. Son (name) and DIL (name)". Or the plaintiff could be "MIL, by and through her attorney-in-fact, SIL (name) vs. (same as above) ".
6. If you do call the clerk of the court's office, and they do find that a TRO or even a permanent injunction was issued, ask when the Proof of Service was filed, and who served the Order. if there is a Proof, but you were never served, you'll likely need an attorney of your own to file a Motion to set aside the injunction.
Derek8922, did your husband's sister have had Power of Attorney for quite a while, or is this something new?
Only your husband's Mom can elect someone to be herePower of Attorney. Paperwork would need to be done along with a Notary, etc. I question the POA since the Mom has Alzheimer's/Dementia, as per your profile.
In most jurisdictions you can get a 10 temporary restraining order before court papers are served. But there is no permanent order without service and without a court date.
If the NH told you there was a restraining order, ask for a copy of it, or, as mentioned above, go to the courthouse to see it.
You need to contact the courthouse and find out if there really is a restraining order since you were not served with one. Not being served with one makes me doubt its existence in reality.
I asked how they knew because I wondered if a pot stirring relative called to say " did you know what your sister did? Got a restraining order against you!" Its been know to happen.
Presumably they found out when they tried to visit the mother.
If there was something wrong with the court process, I should call the court and ask advice about how to challenge it. How long ago was the restraining order granted?
Any idea why your sister in law might have done this?
10 Answers
Helpful Newest
First Oldest
First
Sorry for the wrong conclusion.
"I am caring for my mother, living at home and the primary ailment is alzheimer's / dementia"
Could you explain the current situation, as if your mother is living with you, your sister has no standing to get injunctive relief preventing you from seeing someone in your own house.
ADVERTISEMENT
1. A TRO (Temporary Restraining Order) might be issued under certain circumstances, depending on the judge handling TROs on a certain day. These are known as Ex Parte Orders, meaning that the defendant (the person restrained) is not anticipated to appear. Typically, they're emergency type orders, which is why they're granted ExParte. A process servicer, or perhaps a sheriff's deputy, would serve the Defendant. Family cannot serve other family members.
2. Permanent injunctions require notice to the potentially restrained party to appear at a hearing before a judge. Both parties briefly present their issues and the judge makes a decision. After that, either attorney prepares the Order, opposing counsel signs as approval (to content), it's entered, and the defendant is served.
3. Proofs of service MUST be filed with the Court Clerk; they're then a matter of record.
4. Whether or not a judge would issue a TRO requested by a proxy, or whether a proxy under a POA has the authority to apply for one, depend both on the authority specifically or generally created in a POA as well as the circumstances, alleged justification for injunctive relief, and the judge who reviews the Petition for TRO.
5. You can call the clerk of the court's office and ask if a TRO has been issued and filed, but you'll need to know the specific case name, i.e., "MIL (name) vs. Son (name) and DIL (name)". Or the plaintiff could be "MIL, by and through her attorney-in-fact, SIL (name) vs. (same as above) ".
6. If you do call the clerk of the court's office, and they do find that a TRO or even a permanent injunction was issued, ask when the Proof of Service was filed, and who served the Order. if there is a Proof, but you were never served, you'll likely need an attorney of your own to file a Motion to set aside the injunction.
Good luck.
Only your husband's Mom can elect someone to be herePower of Attorney. Paperwork would need to be done along with a Notary, etc. I question the POA since the Mom has Alzheimer's/Dementia, as per your profile.
If the NH told you there was a restraining order, ask for a copy of it, or, as mentioned above, go to the courthouse to see it.
Have your visits upset the patient?
If there was something wrong with the court process, I should call the court and ask advice about how to challenge it. How long ago was the restraining order granted?
Any idea why your sister in law might have done this?