Care Taker Takes All

What is the name of your state? CA and KS

My husband has an elderly uncle in California who recently passed away. A few years ago the uncle acquired a new "friend." At the time the friend seemed genuine, however as the time passed the friend became controlling. My husband and his father (the uncle's brother) would make annual trips to California to visit the uncle. On one of the visits, they wanted him to come back to Kansas for a visit. At that time, the "friend" let my husband and father-in-law know that he was assigned power of attorney and sole beneficieary of my husband's uncle and that he would not allow travel. My husband and father-in-law were dumb-struck and devistated all at once.

They came back to Kansas. My husband tried to convince his father to get a lawyer and fight the "friend." In his eighties and a bit frail, my father-in-law didn't think there was anything he could do. Soon after he passed away. My husband is the only living relative/heir to his uncle.

About a year after his father passed, he began to pursue legal options with the "friend" of his uncle. At that time, the "friend" informed my husband that he was selling the uncle's house and having him placed in a care facility. He also reminded my husband that he was power of attorney and sole beneficieary of the will, and my husband could do nothing. My husband found an attorney in California. The lawyer was not much help. He also went to California and tried to visit his uncle. The "friend" would not allow him to see him.

We recently recieved notice from the "friend" that my husband's uncle passed away in January and there is a sixty-day time limit respond to something (not sure what). After not allowing contact, and waiting three months to let us know about the death, is there not something that can be done? My husband's uncle was a wealthy man. Each time we have talked to the "friend" he has indicated that he did his legal homework and everything is in perfect legal order and there's nothing we can do about it. How can this be? If this is the case, what is the point in contesting the will? Is there something we can do to invalidate the will? I'm sure the will was changed either under duress or influence of this "friend." If the will is contested and the ruling is in the "friend's" favor, can we somehow take legal action against the "friend" for harm of inheritance or something like that?? I don't even know if that's a legal term, but surely there's something that can be done?

Thanks for any insight that may be given.

Too bad the attorney your husband first consulted gave you bad advice or perhaps was unaware. It was probably a probate attorney who has no experience with family law/elder care law. Your husband could have filed for guardianship or asked for a third party to become guardian to handle this man's financial affairs in order to wrest control from this suspicious "friend" with ulterior motives and he could have gotten the POA voided/cancelled.

This sounds like a classic case of elder financial abuse--find an attorney in California who is experienced with family law to find out what options he can pursue. For sure, there are laws against abuse of POA so if you can prove by looking at the bank records that this person took out exorbitant sums and has no receipts to prove that he spent it on the care and living expenses of this person, then he can be charged with abuse of POA.

Do you know whether the will was prepared with the assistance of an attorney or not (undoubtedly it was--probably an attorney that the "friend" hired and is in cahoots with)? Was there a will prepared before he became acquainted with this friend? Are there witnesses who can testify that there may have been undue influence or a previous will?

He will also need to consult with a probate attorney to find out if he has grounds to contest on basis of undue influence. Was the person taking medications or suffering from any type of disease (Alzheimer's or cancer, etc.) that would have affected his judgment?

DANDY DON IN OKLAHOMA ([email protected])

Years ago, the Los Angeles Times published an expose about this issue. Look at Probate Code Section 21350 et seq for the comprehensive response, which bans gifts to certain caregivers and others. This set of statutes is a work in progress, but may help in your situation. I agree with Dandy Don about doing something immediately. If you do not plan on doing this yourself, contact the local bar association in the county in which your husband's uncle lived and ask them for a referral to a probate litigator ASAP.