Question about the legality of Power of Attorney

[levay]

Here's my situation...

I have an aunt, who is in the late stages of Alzheimer's who also has a few rental properties she owns. When Katrina hit, one of my aunt's daughters took her along when she evacuated. To shorten the story up a bit... the daughter's house flooded during the hurricane and she didn't have flood insurance.

Within the last few weeks, she has convinced my mentally incapacitated aunt to give her power of attorney and is in the process of acquiring her house. The other family members are appalled, as you would expect. They have since decided that they want to appoint another daughter (one of an obvious higher moral caliber) to become the legal power of attorney.

My question to you is, what is my next step? The power of attorney that the daughter has wasn't provided by a court, and by everything that I have read, isn't legal due to the diminished mental capacity of my aunt. How do I go about invalidating her PA and then begin the process of having the court appoint a PA? Once the daughter's PA is shown to be invalid or illegal, can I then contact the DA to bring up criminal charges against her (check fraud, insurance fraud... basically criminalize any action she has performed using the illegal
PA)?

I know this is a tricky one, and I really appreciate the fact that you have gotten this far in the post. If there is anything that you can do to point me in the right direction, I would appreciate it.

Thanks!

 

[tigger22472]

Here's my situation...

I have an aunt, who is in the late stages of Alzheimer's who also has a few rental properties she owns. When Katrina hit, one of my aunt's daughters took her along when she evacuated. To shorten the story up a bit... the daughter's house flooded during the hurricane and she didn't have flood insurance.

Within the last few weeks, she has convinced my mentally incapacitated aunt to give her power of attorney and is in the process of acquiring her house. The other family members are appalled, as you would expect. They have since decided that they want to appoint another daughter (one of an obvious higher moral caliber) to become the legal power of attorney.

My question to you is, what is my next step? The power of attorney that the daughter has wasn't provided by a court, and by everything that I have read, isn't legal due to the diminished mental capacity of my aunt. How do I go about invalidating her PA and then begin the process of having the court appoint a PA? Once the daughter's PA is shown to be invalid or illegal, can I then contact the DA to bring up criminal charges against her (check fraud, insurance fraud... basically criminalize any action she has performed using the illegal
PA)?

I know this is a tricky one, and I really appreciate the fact that you have gotten this far in the post. If there is anything that you can do to point me in the right direction, I would appreciate it.

Thanks!

I have a few questions first...

1. Is this the oldest child of the aunt?
2. who are YOU in this situation?
3. Can you PROVE that the daughter does not have her mother best interests at heart?
4. Can you PROVE that the daughter is or plans to abuse this power, legal or not?

 

[levay]

1. Is this the oldest child of the aunt?
Yes.

2. who are YOU in this situation?
A concerned relative. I have watched the daughter take advantage of my aunt (and anyone else she can) for years and this time she has gone too far.

3. Can you PROVE that the daughter does not have her mother best interests at heart?
Yes. Prior to her "need" for a house, she had little to do with the care of her mother. Every decision she has made with the PA has been directly beneficial to herself and against the wishes of both her mother and the other family members.

4. Can you PROVE that the daughter is or plans to abuse this power, legal or not?
Yes. See above.


What is the legality of simply "assuming" PA from someone of diminished mental capacity against the wishes of the other family members? Is there a way to have a court make the decision of who will assume PA?

Thanks again for your help.

 

[BlondiePB]

Here's my situation...

I have an aunt, who is in the late stages of Alzheimer's who also has a few rental properties she owns. When Katrina hit, one of my aunt's daughters took her along when she evacuated. To shorten the story up a bit... the daughter's house flooded during the hurricane and she didn't have flood insurance.

Within the last few weeks, she has convinced my mentally incapacitated aunt to give her power of attorney and is in the process of acquiring her house. The other family members are appalled, as you would expect. They have since decided that they want to appoint another daughter (one of an obvious higher moral caliber) to become the legal power of attorney.

My question to you is, what is my next step? The power of attorney that the daughter has wasn't provided by a court, and by everything that I have read, isn't legal due to the diminished mental capacity of my aunt. How do I go about invalidating her PA and then begin the process of having the court appoint a PA? Once the daughter's PA is shown to be invalid or illegal, can I then contact the DA to bring up criminal charges against her (check fraud, insurance fraud... basically criminalize any action she has performed using the illegal
PA)?

I know this is a tricky one, and I really appreciate the fact that you have gotten this far in the post. If there is anything that you can do to point me in the right direction, I would appreciate it.

Thanks!

Your aunt cannot sign a POA due to her dementia. Someone needs to petition to be her guardian/conservator.

 

[levay]

Your aunt cannot sign a POA due to her dementia. Someone needs to petition to be her guardian/conservator.

How would I do that? Do I have to have the illegal PA revoked or will that revocation automatically occur with the instatement of a new PA?

Thanks!

 

[tigger22472]

1. Is this the oldest child of the aunt?
Yes.

2. who are YOU in this situation?
A concerned relative. I have watched the daughter take advantage of my aunt (and anyone else she can) for years and this time she has gone too far.

3. Can you PROVE that the daughter does not have her mother best interests at heart?
Yes. Prior to her "need" for a house, she had little to do with the care of her mother. Every decision she has made with the PA has been directly beneficial to herself and against the wishes of both her mother and the other family members.

4. Can you PROVE that the daughter is or plans to abuse this power, legal or not?
Yes. See above.


What is the legality of simply "assuming" PA from someone of diminished mental capacity against the wishes of the other family members? Is there a way to have a court make the decision of who will assume PA?

Thanks again for your help.

Ok.. if your aunt has 'diminished mental capacity' as you say then someone would need to file through the courts for assumed guardianship which would in essence be like a POA for layman terms here.

You will have major issues with this in my opinion however...
First you yourself will have less leverage than any of the children. And currently it's likely as she being the oldest she has the highest amount of leverage.

Next, the courts will likely consider the issue of A. this daughter DID essential save her mother's life in the Katrina disaster and B. MANY people lost their homes in Katrina and a daughter living in the home of her mother's when she doesn't have one of her own doesn't mean that she's taking advantage of her mother. It means that she didn't have a home. Could you or any family member prove that if your aunt was mentally competent that she would not have allowed her daughter to live in her home considering the fact she didn't have one any longer due to a natural disaster?


Your aunts doctors would have to either testify or sign documents stating she has the 'dimished mental capacity' as you are saying.

Now, a general POA does not necessarily have to go through the courts. A lawyer can draw it up and it be notarized with witnesses and it be perfectly legal. Point being, no one here can tell you for sure that the POA she obtained is legal.

This is not a 'simple' process. This is a process of having someone with standing going against a woman's daughter and proving that she is 'using' her mother and has obtained POA illegally. Now, also keep in mind if someone can prove that the POA is not legal that does not prevent the courts from granting a legal guardianship to this daughter.




Blondie: I agree with you, however, this is the posters words and I feel it should be stressed that they would have to have documentation and/or proof that the aunt is mentally incompetent to make this decision.

 

[BlondiePB]

Your aunt cannot sign a POA due to her dementia. Someone needs to petition to be her guardian/conservator.

How would I do that? Do I have to have the illegal PA revoked or will that revocation automatically occur with the instatement of a new PA?

Thanks!

Yes, it will automatically invalidate any POA. See an Elder Law/Probate attorney that specializes in guardianships where you aunt is domiciled as guardianships are jurisdictional.

 

[BlondiePB]

Blondie: I agree with you, however, this is the posters words and I feel it should be stressed that they would have to have documentation and/or proof that the aunt is mentally incompetent to make this decision.

Once the poster begins guardianship proceedings, her aunt will be evaluated.

 

[tigger22472]

Once the poster begins guardianship proceedings, her aunt will be evaluated.

Right I understand that, I'm just saying that it will be a process of doing that but even IF she's found incompetent this does not automatically mean the daughter here won't get the guardianship. I think the short goal is rid of the possibly invalid POA... the long goal is to get the daughter out of a decision making role and I'm unsure that's going to be the case here. I could be wrong, but I think there's going to be some serious consideration considering the backlash of Katrina. The OP seems to act as if this is going to be a very simple process and I can't agree with that.

 

[BlondiePB]

Right I understand that, I'm just saying that it will be a process of doing that but even IF she's found incompetent this does not automatically mean the daughter here won't get the guardianship. I think the short goal is rid of the possibly invalid POA... the long goal is to get the daughter out of a decision making role and I'm unsure that's going to be the case here. I could be wrong, but I think there's going to be some serious consideration considering the backlash of Katrina. The OP seems to act as if this is going to be a very simple process and I can't agree with that.

The person who wants to be the guardian will have to be eligible to be one. The court appoints the alleged incompetent an attorney who represents only the alleged incompetent. The alleged incompetent does have a say-so of whom he/she wants appointed as the guardian. IMO, Katrina will not be an issue for the alleged incompetent who needs her property secured. The best person to be a guardian for this aunt is one of her own children who would not steal her property and is eligible to be a guardian.

 

[levay]

First you yourself will have less leverage than any of the children.

Agreed. My only part in this is to "get the ball rolling". I would have no part in the proceedings. This would an issue involving the other daughters/sons.

Next, the courts will likely consider the issue of A. this daughter DID essential save her mother's life in the Katrina disaster

IMO that shouldn't be an issue b/c since every family member evacuated, who she evacuated with was simply a case of which car she got in. Also, her house was safe so if should have not evacuated, she wouldn't have been harmed.

B. MANY people lost their homes in Katrina and a daughter living in the home of her mother's when she doesn't have one of her own doesn't mean that she's taking advantage of her mother. It means that she didn't have a home. Could you or any family member prove that if your aunt was mentally competent that she would not have allowed her daughter to live in her home considering the fact she didn't have one any longer due to a natural disaster?

Yes, the mother would have allowed her to stay, but at the time my aunt's youngest son was living there with her. When the daughter decided she wanted the house, she used her PoA to issue an eviction notice to the son. That is something that would NOT have happened if my aunt knew what was going on around her.

Your aunts doctors would have to either testify or sign documents stating she has the 'dimished mental capacity' as you are saying.

That isn't a problem. Saddly, she has reached the point where she doesn't know peoples names or where she is. That is another reason the aquisition of the PoA was so disturbing.


So at this point, what would be the next step that you would take?

Thanks once again for all of your help.

 

[BlondiePB]

So at this point, what would be the next step that you would take?

As advised above, an attorney that specializes in guardianships needs to be hired. Have the "honorable" daughter of your aunt do this.

Thanks once again for all of your help.

You are welcome.

 

[tigger22472]

The person who wants to be the guardian will have to be eligible to be one. The court appoints the alleged incompetent an attorney who represents only the alleged incompetent. The alleged incompetent does have a say-so of whom he/she wants appointed as the guardian. IMO, Katrina will not be an issue for the alleged incompetent who needs her property secured. The best person to be a guardian for this aunt is one of her own children who would not steal her property and is eligible to be a guardian.

I agree on most parts of this with you, and I could be wrong about the Katrina thing... however, OP has really IMO mentioned nothing proving this child is taking advantage of the mother necessarily. I mean sure, she's living in her mom's house.. but again I really think considering Katrina they would have to somehow prove this woman would not have let her daughter live there if she was mentally competent.

 

[Dandy Don]

Talk to a family law attorney or probate attorney or business law attorney to find out whether your state has laws against abuse of power of attorney.

 

[BlondiePB]

I agree on most parts of this with you, and I could be wrong about the Katrina thing... however, OP has really IMO mentioned nothing proving this child is taking advantage of the mother necessarily. I mean sure, she's living in her mom's house.. but again I really think considering Katrina they would have to somehow prove this woman would not have let her daughter live there if she was mentally competent.

Read the OP's first post again, tigger. Being homeless due to a disaster is no excuse to have an incompetent sign a POA and then use the POA to change the deed of the incompetent's home. The OP also suspects check and insurance fraud committed by her cousin.