"Improper Power Of Attorney"

[globalgiant]

What is the name of your state (only U.S. law)?

In 2010 my grandfather granted my father POA and signed a Will. In early 2011 my grandfather entered assisted living, and has since been diagnosed with dimentia and declared mentally incompetant. In October 2012 my uncle had my grandfather sign a new POA and Will, without my fathers knowledge. My uncles attorney has since admitted that the new POA is "improper" and has requested my uncle reverse any changes he has made. My uncle has ignored the requests. Can anything be done to revoke to new POA. It should be noted that my grandfathers primary care physician for the last 6 years has declared him mentally incapable of making decisions, and has sent a formal letter to my uncles attorney and all financial institutions. Thank you very much for any help.

 

[justalayman]

Does your grandfather have a guardian or custodian? If so, I suggest that person start looking for an attorney to take this to court before irreversible damage is done.

 

[globalgiant]

Does your grandfather have a guardian or custodian? If so, I suggest that person start looking for an attorney to take this to court before irreversible damage is done.

I do not believe so. All I know is that my father was granted medical and financial POA by my grandfather, who was competant at the time of signing the POA and Will. I find it interesting that my uncles attorney has admitted (not in writing) that the POA is "improper" (because of my grandfathers mental condition, and also the two witnesses were care-givers which specifically lists in the POA document that care-givers are not "valid" witnesses).

This is a mess, and unfortunately my father is so distracted by my uncles betrayal that he has procrastinated in seeking aggressive legal action.

Thanks for the response.

 

[anteater]

Did the "new" POA document revoke the power granted to your father? Was there any kind of notification sent to your father that the power granted to him was revoked?

 

[latigo]

What is the name of your state (only U.S. law)?

In 2010 my grandfather granted my father POA and signed a Will. In early 2011 my grandfather entered assisted living, and has since been diagnosed with dimentia and declared mentally incompetant. In October 2012 my uncle had my grandfather sign a new POA and Will, without my fathers knowledge. My uncles attorney has since admitted that the new POA is "improper" and has requested my uncle reverse any changes he has made. My uncle has ignored the requests. Can anything be done to revoke to new POA. It should be noted that my grandfathers primary care physician for the last 6 years has declared him mentally incapable of making decisions, and has sent a formal letter to my uncles attorney and all financial institutions. Thank you very much for any help.

I suppose we are left to guess as to where this assisted living facility is located. But let's assume that it is somewhere in the United States.

Moving on then, please explain how you are privy to any instructions given to the uncle by his attorney regarding disposition of the recent failed attempt to create a power of attorney and a new will.

If those documents do exist, they cannot be "reversed" by the uncle. Not even if they were legally effective (which they are not) could the uncle unilaterally unwind them. And because of that impossibility I have to seriously question that the uncle's attorney even suggested it.

Regardless, what needs to be done, and post haste, is to have a conservator/guardian appointed for grandpa.

But since you failed to tell us the state where he is living it is impossible to refer you to the statutory procedures. In some states the guardian of a ward possesses the same powers as a conservator whose primary function is the preservation of the ward's assets. In others the two offices are separate with unique duties and responsibilities.

But has justalayman has mentioned someone needs to get the barn doors locked while there is still need of a barn.

 

[globalgiant]

Did the "new" POA document revoke the power granted to your father? Was there any kind of notification sent to your father that the power granted to him was revoked?

There was no notice sent. My father first figured out something was wrong when he went to access my grandfathers bank account to pay some bills and could not get in. He then found out from the assisted living home that when he was on vacation my uncle was there with an attorney and his assistant and had my grandfather sign some payments. It is obvious the entire process was timed to take place while my father was out of town.

 

[globalgiant]

I suppose we are left to guess as to where this assisted living facility is located. But let's assume that it is somewhere in the United States.

Moving on then, please explain how you are privy to any instructions given to the uncle by his attorney regarding disposition of the recent failed attempt to create a power of attorney and a new will.

If those documents do exist, they cannot be "reversed" by the uncle. Not even if they were legally effective (which they are not) could the uncle unilaterally unwind them. And because of that impossibility I have to seriously question that the uncle's attorney even suggested it.

Regardless, what needs to be done, and post haste, is to have a conservator/guardian appointed for grandpa.

But since you failed to tell us the state where he is living it is impossible to refer you to the statutory procedures. In some states the guardian of a ward possesses the same powers as a conservator whose primary function is the preservation of the ward's assets. In others the two offices are separate with unique duties and responsibilities.

But has justalayman has mentioned someone needs to get the barn doors locked while there is still need of a barn.

Thank you for the response, and I apologize for the lack of information. I had previewed my first post and some of the information apparently had been wiped. The state is Colorado.

After viewing a copy of the "new" POA, the identity of the attorney and the witnesses were identified. A letter from my grandfathers physician was sent to the attorney along with a follow-up call. The attorney stated that the POA was "probably improper" (his words), and that he would ask the uncle to reverse any changes made. After contacting the attorney on a later date, he had stated the uncle "didn't seem concerned" about the POA not being valid.

Why the attorney decided to go along with the POA after seeing my grandfathers condition, I do not know. Why the attorney decided to use two witnesses, who by the words in his own document are not valid, I do not know. Is it just me, or are those decisions ethically questionable? Or incompetent in the least...

 

[justalayman]

Why the attorney decided to go along with the POA after seeing my grandfathers condition, I do not know.

because the attorney is not a doctor and he was not your grandfather's attorney.


None of your concerns matter if nobody is going to challenge the POA. As it stands, the POA is valid and will allow your uncle to act on your grandfather's behalf.

 

[globalgiant]

because the attorney is not a doctor and he was not your grandfather's attorney.


None of your concerns matter if nobody is going to challenge the POA. As it stands, the POA is valid and will allow your uncle to act on your grandfather's behalf.

Points taken. I just don't understand how ANYBODY could be in the same assisted living room as my grandfather for 5 minutes, and not question his mental capacity. I personally would think that his mental condition would at least be questioned before proceding.

I guess one of my main questions here is...how do you challenge a POA that is clearly not valid? Is there an "easy" way to nullify the "new" POA and Will? I am here because my uncle used $4000 of my grandfathers funds to take control, and I (we) do not have thousands more to spend to resolve this issue.

I greatly appreciate all the responses.

 

[justalayman]

re-read latigo's post.

and it will cost somebody money to deal with this. Lawyers don't work for free and based on your questions, it is going to require the assistance of an attorney.

 

[anteater]

If your father's power was not revoked, then it is still valid (assuming that it was a durable power of attorney, that is, it was written so that it survives your grandfather's incompetence). The problem is that, if any of the institutions have now been presented with two POA's and that letter from the physician, the institutions may be inclined to say that they are not going to recognize either short of a court order. Which would leave only the alternative of obtaining guardianship/conservatorship.

What sort of transactions has the uncle conducted using the power? How large? How far is your father willing to go on this? Contacting law enforcement about possible criminal prosecution?

As for the wills, there isn't much that can be done until your grandfather passes away. At that time, your father can submit the first will for probate and see if the uncle has the chutzpah to object and present the second will. If your uncle does, then your father would present evidence regarding your grandfather's incapacity at the time the second will was executed.

 

[globalgiant]

If your father's power was not revoked, then it is still valid (assuming that it was a durable power of attorney, that is, it was written so that it survives your grandfather's incompetence). The problem is that, if any of the institutions have now been presented with two POA's and that letter from the physician, the institutions may be inclined to say that they are not going to recognize either short of a court order. Which would leave only the alternative of obtaining guardianship/conservatorship.

What sort of transactions has the uncle conducted using the power? How large? How far is your father willing to go on this? Contacting law enforcement about possible criminal prosecution?

As for the wills, there isn't much that can be done until your grandfather passes away. At that time, your father can submit the first will for probate and see if the uncle has the chutzpah to object and present the second will. If your uncle does, then your father would present evidence regarding your grandfather's incapacity at the time the second will was executed.

I do not believe it was revoked. He was not notified of any changes whatsoever. And yes, it was a durable POA. I am not fully aware of the transactions that my uncle has conducted using the POA. There was a safety desposit box that was emptied that contained valuable jewelery. A couple of the bank accounts are out of state, and the only transaction that was conducted at a local bank account was for the approximately $4000 of attorneys fees to draft the new POA and Will. I believe my father is willing to take this as far as he needs to to resolve the issue and regain financial and medical control (which is what my grandfather wished).

Could my uncle face prosecution for knowingly having my grandfather sign these documents? Messing with financials? I do believe my father would persue criminal prosecution, as this was obviously planned out and timed so that there would be no resistance. I should also note that my uncle is over 1000 miles away from my grandfathers assisted living home, and has refused to answer or return any of our phone calls.

Thank you for your response.

 

[anteater]

$4,000? For a POA and a will??? Since the attorney has shown at least some integrity, I would be asking for a refund - at least partial.

Could my uncle face prosecution for knowingly having my grandfather sign these documents? Messing with financials?

For arranging all this, I would guess probably not. Not sure what "messing with financials" means exactly. But it costs nothing to at least contact law enforcement. Generally, prosecutors have been more aggressive in the last decade or so with POA abuse cases. But, also generally, they are more likely to pursue cases where the damages are significant and the agent clearly indulged in seal-dealing. It is up to your father.

The first thing I would suggest is that your father contact all those financial institutions to find out if they will still recognize his power.

If not, as Latigo and Justalayman have stated, he is probably going to have to pursue guardianship/conservatorship.

 

[globalgiant]

So the plot thickens...

My father submitted a conservator/guardianship request with the court, and several hearings have been held going over background, financial, competency of my father, etc... At the beginning of the hearing the Judge ordered court appointed guardians for both of my grandparents. Within the past month one of my uncles applied for conservator power for my grandmother only, and a couple of days ago applied for conservator for my grandfather also. There has been suspicion that the court appointed guardian for my grandmother has been "advising" my uncle about the case, how to make my father look bad, how to make himself look better, etc.. Well to the point, the other day when my uncle submitted his conservator application, he listed one of my fathers bank accounts on his application (account number and balance). The only way my uncle would know this information is if the court appointed attorney for my grandma had provided it to him.

My question is...What right does an attorney in the case have to give out my fathers financial information to a third party? Is this not a major breach of confidentiality and ethics?? What is the recourse?

Btw, the next hearing is scheduled for next week.

Thanks in advance for any advice.

 

[mtpockets]

Bank's Power of Attorney

There was no notice sent. My father first figured out something was wrong when he went to access my grandfathers bank account to pay some bills and could not get in. He then found out from the assisted living home that when he was on vacation my uncle was there with an attorney and his assistant and had my grandfather sign some payments. It is obvious the entire process was timed to take place while my father was out of town.

Did the bank accept either Power of Attorney?

My father's attorney told us that many banks refuse to accept a durable Power of Attorney prepared by the account holder's attorney. They instead require that the account holder execute one of their forms. This turned out to be the case in my situation. (I am in California.)

The bank Power of Attorney (prepared by the bank) is very limited. An account holder may have to execute more than one bank-prepared Power of Attorney, each of which authorizes a specific type of transaction.

My father had to sign two bank-prepared Powers of Attorney. Each time we had to make a trip to the bank so that he could sign the bank's form in the presence of one of its employees, who was also a notary.

Perhaps this is an angle you could explore.