• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

NYS-Fraudulent POA

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

nubia1218

Junior Member
What is the name of your state? New York

My siblings and I have a situation with our father's wife. We know she obtained a POA after our father was diagnosed with Alzeheimer's. We have a written doctors letter that predates the POA. We would like to know in which court do we challenge the validity of the POA? Also, if we do not contest the will, in which she is the executor, in Surrogate's Court, will this impact the challenge of the POA? Can POA be challenged in Civil or Surrogates Court?
 


moburkes

Senior Member
What is the name of your state? New York

My siblings and I have a situation with our father's wife. We know she obtained a POA after our father was diagnosed with Alzeheimer's. We have a written doctors letter that predates the POA. We would like to know in which court do we challenge the validity of the POA? Also, if we do not contest the will, in which she is the executor, in Surrogate's Court, will this impact the challenge of the POA? Can POA be challenged in Civil or Surrogates Court?
What the heck kind of a legal document is a written doctor's letter? What power do you think that she has, as the executor?
 

Dandy Don

Senior Member
Exactly what do the doctor's letters state? Just curious. I assume you mean they mention the fact that he has Alzheimer's.

The fact that she got the POA after the Alzheimer's diagnosis means that (even though she didn't know it), the POA is invalid, since a person with such a disease is presumed to not have the mental capacity to enter into and understand legal agreements.

You need to be consulting with an attorney if you have not done so already. The POA may be a moot point since as his spouse she is entitled to a certain portion of his assets anyway. Your attorney will need to look at what assets are in the estate, how they are titled (were specific beneficiaries designated to each asset outside of the will or not), what is the estimated total value of the estate, etc.

The most important thing for your attorney to figure out is: when was the will written--before he was diagnosed with Alzheimer's (in which case it will most likely stand up in court), or after, in which case it could be successfully contested. Will also need to look at any assets the wife claimed using the POA (if she claimed any such assets using the POA, since it was invalid, the transactions will need to be reversed and put back into the estate and she may even be charged with abuse of power of attorney if your state has laws against such).

DANDY DON IN OKLAHOMA ([email protected])
 

nubia1218

Junior Member
Nys-poa

Okay, let me clarify on the doctors letter. Yes, the doctors letter states that he had Alzheimer's. We believe she obtained the POA fraudlently. The question is in which court should we pursue the case of fraud?

We have a valid will, but a fraudlent POA. Property was sold, prior to his death, under the POA, and she has claimed all monies have been spent and has not returned any funds to the estate to be distributed as the will intended.
 

nubia1218

Junior Member
Fraudulent POA - Is this a Civil Case?

Dandy Don, Thanks for your reply. We have an attorney for Surrogates Court, and he has suggested the will not be contested b/c the bulk of the estate was left to his children. However, some property was sold under the fraudulent POA, prior to his death, and the wife is claiming all the money has been spent. The property sold was left to myself and two other siblings. Our attorney has indicated it is a week case to go after her in Surrogates Court for fraud. Can we pursue the fraud case in civil court?

Anyone who has an answer to this, please let me know. Our next court date is this week and we need to know if we do not contest the will, if this will affect our case in a civil action.
 
What is the name of your state? New York

My siblings and I have a situation with our father's wife. We know she obtained a POA after our father was diagnosed with Alzeheimer's. We have a written doctors letter that predates the POA. We would like to know in which court do we challenge the validity of the POA? Also, if we do not contest the will, in which she is the executor, in Surrogate's Court, will this impact the challenge of the POA? Can POA be challenged in Civil or Surrogates Court?
You are aware, I hope, that in many instances spouses act as POA (without the formal document) by virtue of marriage. Therefore, many transactions that take place in this situation are not subject to challenge.
 

Dandy Don

Senior Member
You need to be getting a second opinion from another attorney about your chances for contesting the will, which seem to be pretty weak. Did the man prepare the will himself BEFORE he had Alzheimer's or after he was diagnosed with it or did he have an attorney draft it? Or did the wife draft it before or after she got power of attorney? Since she did not obviously financially benefit from the drafting of the will, it's hard to see what your argument would be for contesting it unless she drafted it to get control of the property for her children, and even if that was the case, it is now a moot point since the will no longer applies to any assets that were disposed of prior to probate.

Highest priority should be to be asking a family law attorney or probate attorney if your state has laws against abuse of POA and that is what I would be charging her with if in fact she used it in the transaction/presented it during the transaction and if all the facts show that this is what she did according to the legal description of power of attorney. Fraud requires a much more difficult standard of proof and may not seem to apply here. Your state attorney general or elder financial abuse attorney organizations have websites describing abuse of POA so you may want to look into those to see if your case fits that requirement.

DANDY DON IN OKLAHOMA ([email protected])
 
Last edited:

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top