Tag Archives: COMPETENCY

Can his sisters contest his will?

Q: He had his lawyer do his will after the diagnosis. The doctor giving him a 10-year possible lifespan prognosis. He has no wife or children. He has two siblings older than him and nieces and nephews. We are not romantic, but we have social outings and travel together. He pays. He also gives me around $700 a month to help pay my mortgage. I am 74. I fear when he passes that I could have trouble from his sisters and the nieces and nephews contesting the will. His estate consists of a 2015 Corvette Stingray, a 2016 Rav 4, a $180,000 home and about $150,000 in the bank plus a coin collection. No bills other than monthly utilities and living expenses. What should I do when the time comes? (Clairton, PA)

A: If he was competent when he executed the will, and the will is in compliance with the law, you should be fine. Anybody can say they will contest a will, but it is difficult to do. If the testator was competent and there is no clear and convincing evidence that the will was a product of coercion or undue influence, they have no claim. Because you are not married to him and you are not family, is irrelevant. He is free to leave his estate to whomever he wishes. There is nothing you can do except make sure his original will is preserved and kept safe. If it would disappear before he dies, then his biological heirs will inherit from him, and you will be out of the picture.

Can I sign her will if I am Power of Attorney?

Q: I have been taking care of my mother for the past 5 years! She has become sick and has given me a power of attorney! Could I have a living Will prepared if I have a power of attorney! (Pittsburgh, PA)

A:  Are you are asking whether you, as Agent under a POA, can sign a living will for your mother? The answer is unfortunately no. She needs to sign her own living will, will and power of attorney. She can do so only if she is competent. Ask her doctor if she is competent to sign these documents. You can also ask a lawyer to visit her and assess her for competency

Husband’s father has cancer, can his sister write checks?

Q: My husband’s sister is staying with her father. Who is sick. My husband is the father’s Power of Attorney, but the sister has been signing the father’s checks and giving them to her other sister, who up until this week hasn’t been part of her father’s life for several years. Supposedly they have been taking his mail and banking information out of the house as well. The do not possess power of attorney, and the sister staying with her father is on SSI Disability, and has taken the father’s bank cards and been using them for purchasing many items for herself and her boyfriend without the father’s permission. (Pittsburgh, PA)

A: She has no authorization to sign checks on his behalf. She should not give his money to anyone else unless he is authorizing her to. The way you describe it, it sounds like she is taking advantage of him. As his Agent under a POA it should be in your husband’s authority to safeguard him in a variety of ways, assuming he is not competent and is not opposing your help. If so, you can close his bank accounts, have the bank restrict them, redirect his mail, change his locks and keep them out of his house. These are complicated situations and you may want to consult with a local attorney. If his competency is in question and he refuses your help, your husband may want to consult with an attorney about becoming his Guardian.

How can I have my 93-year-old mother declared incompetent?

Q: My sister and I have had joint POA since 2013, but not immediate. We have never exercised any POA. I have been taking care of her, although she is in an “independent living” place. I do her finances, her shopping…she should not be alone any more, as her health and mental condition are both deteriorating. She cannot live with me. My sister and her husband are willing to have her move in with them in another state, until a nursing home or hospice is the only option. She does not want to go, but at this point it cannot be her choice anymore. Ten years of my life are gone. (West Mifflin, PA)

A: This is a difficult situation. If your mother is deemed to be incompetent to manage her own affairs, you can file to be appointed her guardian. Until then, she can make her own decisions. You really need to sit down with a lawyer who handles guardian work and share all the facts.

How can I get power of attorney revoked?

Q: My mother has her boyfriend as her power of attorney. She has become ill but can very much speak on her own behalf and make her own decisions. The boyfriend is not allowing her to have a choice in any decision from what clothes she needs to wear to which credit card to use for a purchase to what she feels like eating for breakfast. He speaks to her as if she is a child and threatens to take things away if she doesn’t do what she’s told. I need to know what steps come first in this case for me to follow. (Pleasant Hills, PA)

A: More information is needed for me to understand the entire picture, but I can give you some general advice. A Power of Attorney can be revoked in writing by the Principal. If your mother is competent, she can sign a written revocation of the POA and have the revocation delivered to any financial institution, hospital or entity in which the POA may be on file or who may have relied on it. It needs to be your mother’s wish to revoke the POA. If she is conflicted because of her relationship with this man, you may want to investigate other measures, such as a guardianship. If that is the case, I suggest that you take her to an attorney and if she resists, consult with one yourself.

Can I get a POA over mom without her knowledge?

Q: My 89-year-old mother has been diagnosed with severe delusions and after a psychological and medical evaluation, a letter was written stating that she is suffering from delusions and is not capable of handling her financial affairs. With an attorney in my presence, my mother stated that she would never let anyone take over her financial affairs and stated that she would not live. My mother believes she is a CEO of a company, married to someone that does not exist. Her only source of income is social security around $960 per month and most of it is used to set up business phones. Banks accounts were set up as business accounts even though the name she sets it up is different than her ID. There is other devastating and crazy actions that consumes all her SSI. Her current doctor will write another letter regarding her delusions and she is currently taking medication for delusions. Is it possible for me and my sister to get a Power of Attorney without our mother having knowledge of it because it would harm her and could make her have a stroke or serious medical issue? We heard from other families with the same situation that they have done it. Is so who can do it and what is the average cost and time frame? (Pittsburgh, PA)

A: No, you cannot get a Power of Attorney over someone without their knowledge. The person must be competent, understand what they are doing and sign the document. Your mother sounds like she may not be competent to sign such a document. If that is the case, your only option would be to file in court to be her guardian. Your mother certainly would have to know about this proceeding as she would be summoned to court unless excused for health reasons. You should consult with a CA lawyer in person.

Do Not Resuscitate against my mother’s wishes?

Q: My mother wants to be resuscitated and I am her POA. I informed the hospital where she is now about her wishes. Hospital had an ethics committee meeting and decided that she should be “Do Not Resuscitate”, against my consent. What can be done? Thank you. (Pittsburgh, PA)

A:   Against your consent doesn’t matter, this decision can only be based on what your mother wants. You need to verify more information. Does this POA you reference give you authority to act on her behalf for medical needs? Do you have a separate Medical POA? If you do not have medical powers, the hospital may not be required to release any medical information to you. I think you need to verify if A) your mother signed a hospital DNR card and who has it, B) your mother has a Living Will and who has it (her doctor, the hospital, etc.) C) your mother is competent and if she is not D) does this POA give you authority to make medical decisions. Once you can answer these questions, you should attempt once more to speak with the manager of this facility. If you still get nowhere, hire an elder law attorney versed in nursing home practice to consult with and if necessary retain him or her.

How? What?

Q: My mother had a stroke and is unable to care for herself. My father passed away 4 years ago. I’m their only child. How can I get power of attorney? Am I able to take over the house they lived in? Neither one had a will or living will. There is more I want to ask and know but I either talk on the phone or in person. (Turtle Creek, PA)

A: You need to find a local attorney who handles wills, POA’s and estates. Find someone who will give you a free or low-cost consultation. Your mother can only sign a POA or other documents, if she is competent. If she is not, you may need to have an attorney petition the court to be her guardian. If mother is competent, an attorney can prepare a POA, Will and Living Will at a reasonable cost.

Is healthcare POA enough to move my mother in with me?

Q: There is a greedy trustee in charge of my mother’s finances who wants to sell all my mother’s properties. The trust states that I can live rent free at one specific property for as long as I wish as my mother wants me to retire in this home. My father built it and I grew up in it. My mother also wants to move in with me since she has dementia and can’t take care of herself. Also, the in-home care she has at her late husband’s house is costing a fortune and will deplete all her assets. The trustee fights me on getting rid of the expensive in-home care. Don’t I have a right to look out for my mother’s best interests and wishes as her daughter and POA of healthcare? The trustee acts like a dictator and expects us to do but why can’t we do what we know is the best thing for us as a family in spite of the trustee using intimidation to get her own way? (Pittsburgh, PA)

A: You need someone with an unbiased and objective point of view to look at the entire situation. I would make an appointment with an estate attorney experienced with trusts and guardianship law in to have the POA and the trust agreement reviewed. In addition, the attorney needs to be apprised of all the facts. If what you say is correct, it may be possible under the language of the trust agreement for your mother to fire the Trustee and have another one appointed. If your mother is not competent, this can be done by an Agent under a POA if the language of the POA permits an Agent to do so. However, as you describe this as a medical POA, it is doubtful that it contains such language. In that is the case, you may need to be appointed as her Guardian. Again, you need a legal consultation.

What are the options if a Power of Attorney refuses to do the job of a Power of Attorney?

Q: My father has my sister as his Power of Attorney, due to having issues with the law (DUI) and not being able to take care of his own financial obligations (Bills, Mortgage, and the like). We (my two sisters and I) sat down to figure out the best person for the job, and because of her strong financial stability, it was decided that the eldest daughter should take that responsibility. That was February of 2015. By September of 2015, my sister said she was not going to have anything to do with him, and refused to relinquish power of attorney. My father is now in Foreclosure with the house, bills were several months behind, until I moved back in. I cannot afford to cover the mortgage, otherwise I would have. My father spends well out of his means, and I have no legal basis to stop him. My sister was supposed to pay all the bills, and then have a card sent, so I could make sure that all his other needs were met. I love my family, but my dad is now living in a motel room, because of having nowhere else to go. What can I do? (Ligonier, PA)

A: If your father is competent, acknowledges that he needs help, and is willing to appoint you as his agent on a new power of attorney, he can simply revoke the present power of attorney and sign a new one. As mentioned, even with the power of attorney in place, he can still handle is own finances-write checks, spend money, etc. If he is not competent, unable to care for himself or danger to himself, you may want to consider having yourself appointed as his guardian. To do this you will need to have a lawyer file a petition with the court and a hearing will be held. You need to consult with an elder law attorney in your area.