Power of Attorney abuse?

[wolflover]

What is the name of your state (only U.S. law)? Ohio
My father wanted to avoid probate when he died and told me all of his accounts and his home would be transfered to me upon his death.
Even in March of this year, when he refinanced his mortgage, he added mine and my brother's name to the deed to be transfered to us upon his death.
His will also had my name in it.
He became ill and had to have brain tumor surgery last month.
His brother, who had power of attorney, drafted a new will the day before the surgery and also registered a new deed to the house, transfering it to my cousin (his own daughter) upon my father's death.
I assume he has done the same thing with all accounts, pensions, annuities, etc.
He also said my name was not in the new will at all.
My father passed away a few weeks after the surgery.
Do I have any recourse here?
I have been lied to several times by my uncle and excluded from the whole matter.
I am pretty sure my uncle abused his power of attorney.

 

[curb1]

Get an attorney immediately. The longer you wait the greater the problem.

 

[wolflover]

I do have a consultation next week with a probate attorney.
I was just wondering if anyone knew if we had a chance of fighting this.
It's all so wrong!
I know what my Dad told me and what he did reflected that...until he was hospitalized and his brother "stepped in".
It's just that my uncle made everything tranferrable upon his death to his own daughter and who knows who else, so I am not sure anything can be done as he is avoiding probate.
The probate court said no case has been opened and there isn't even a death certificate issued yet.

 

[BlondiePB]

I do have a consultation next week with a probate attorney.
I was just wondering if anyone knew if we had a chance of fighting this.
It's all so wrong!
I know what my Dad told me and what he did reflected that...until he was hospitalized and his brother "stepped in".
It's just that my uncle made everything tranferrable upon his death to his own daughter and who knows who else, so I am not sure anything can be done as he is avoiding probate.
The probate court said no case has been opened and there isn't even a death certificate issued yet.

Typically, death certificates are available about 7-10 business days after a death from the funeral director to whomever signed for the arrangements. Numerous orginal copies are needed, including one to open probate.

 

[curb1]

wolflover,

Much of your success will depend on how well organized you are. You need to precisely determine what has taken place.

You said, "I assume he has done the same thing with all accounts, pensions, annuities, etc." You can't "assume" anything. What did these people tell you when you contacted them? You have contacted them, .... right? How is the deed now registered at the courthouse?

Who signed the "new" will? Was your father mentally competent at the time? What I am suggesting is that you need to be very assertive at this time. There is much you can do before your consultation. The more organized information you can get, the better.

 

[Dandy Don]

Before you go to a probate attorney (have you even checked at the county courthouse probate court to see if the will has been filed yet?), you should at least have a consultation with a family law attorney in Ohio or an attorney who specializes in "abuse of power of attorney" cases (do a search on any search engine using the phrases simultaneously "Ohio" and "abuse of power of attorney" and you will see some links come up.

Depending on exactly what has occurred, it seems like there is enough evidence to file charges against brother for abuse of POA and/or elderly financial abuse and if found guilty he would have to make restitution to the estate, which might be a bit easier than anything you could do in probate court.

Better yet, it would be easy to determine if he unlawfully changed beneficiary designations on those assets outside of the estate and your attorney will probably be able to get the original designations restored so that the assets can then be payable to the correct parties.

 

[wolflover]

Typically, death certificates are available about 7-10 business days after a death from the funeral director to whomever signed for the arrangements. Numerous orginal copies are needed, including one to open probate.

We have been calling 2-3 times a week-the death certificate is still not ready.
He passed on 11/10/09, so it's been 16 days.

 

[wolflover]

wolflover,

Much of your success will depend on how well organized you are. You need to precisely determine what has taken place.

You said, "I assume he has done the same thing with all accounts, pensions, annuities, etc." You can't "assume" anything. What did these people tell you when you contacted them? You have contacted them, .... right? How is the deed now registered at the courthouse?

Who signed the "new" will? Was your father mentally competent at the time? What I am suggesting is that you need to be very assertive at this time. There is much you can do before your consultation. The more organized information you can get, the better.

Well, I really don't want to talk to my uncle again until I've spoken with an attorney. He has told me that I am not in the new will and that basically, there is nothing for me or my brother.
The new deed my uncle made with his daughter receiving the house was filed at the clerk of courts 12 days before he passed.

I'm not sure of my father's mental state at the time of his surgery, he had a brain tumor, so he may not have been "all there". I wasn't even notified he was in the hospital until he'd already had the surgery, which is another point of contention.

 

[wolflover]

Before you go to a probate attorney (have you even checked at the county courthouse probate court to see if the will has been filed yet?), you should at least have a consultation with a family law attorney in Ohio or an attorney who specializes in "abuse of power of attorney" cases (do a search on any search engine using the phrases simultaneously "Ohio" and "abuse of power of attorney" and you will see some links come up.

Depending on exactly what has occurred, it seems like there is enough evidence to file charges against brother for abuse of POA and/or elderly financial abuse and if found guilty he would have to make restitution to the estate, which might be a bit easier than anything you could do in probate court.

Better yet, it would be easy to determine if he unlawfully changed beneficiary designations on those assets outside of the estate and your attorney will probably be able to get the original designations restored so that the assets can then be payable to the correct parties.

The probate court said no file has been opened.

So a probate litigator is not who I would want to contact initially?

"Better yet, it would be easy to determine if he unlawfully changed beneficiary designations on those assets outside of the estate..."

How is that done, can you explain that process at all?

Thanks to everyone who has replied so far-you are all helping me to uinderstand this better. It's hard having to wait for our consultation next week with the probate lawyer!

 

[curb1]

You might get answers to, "I assume he has done the same thing with all accounts, pensions, annuities, etc." by making some phone calls. Phone calls are cheap, give it a try.

 

[wolflover]

You might get answers to, "I assume he has done the same thing with all accounts, pensions, annuities, etc." by making some phone calls. Phone calls are cheap, give it a try.

I only know of 2 banks that he dealt with.
One I called and they told me there weren't any accounts with his name on it except his mortgage.

The other, when I asked if my name was on any of his accounts, told me I needed to bring in a death certificate and ID, they would not tell me anything.
There isn't a death certificate available yet.

I could call my uncle, but he has already basically told me I get nothing, nothing has my name on it, and I don't even want to alert him to the fact that we are looking into fighting this. He must think we are idiots.

 

[Dandy Don]

It will be easy for the LAWYER to determine if the beneficiary designations have been changed.

 

[wolflover]

It will be easy for the LAWYER to determine if the beneficiary designations have been changed.

Probably so, and I will be talking to a probate litigation attorney on Monday...

What's driving me mad now is not knowing if my uncle (POA) could legally do just that. I've read where POA can and where they can't change beneficiaries.

 

[TrustUser]

generally speaking, poa's are not able to change beneficiaries on an account.

and i can tell you from personal experience, that poas are often questioned by the company that is being presented with the poa. i think most savings institutions would be very reluctant to change a beneficiary designation because of a poa.

 

[anteater]

Probably so, and I will be talking to a probate litigation attorney on Monday...

What's driving me mad now is not knowing if my uncle (POA) could legally do just that. I've read where POA can and where they can't change beneficiaries.

Ohio requires that the power to change beneficiaries be specifically granted.

See the Ohio Revised Code. In particular, 1337.20:
http://codes.ohio.gov/orc/1337

For example:

If specifically authorized in the power of attorney, designate or change the designation of a beneficiary to receive any property, benefit, or contractual right on the principal’s death....

An attorney does not have any magic powers to get financial institutions to reveal the existence of accounts or beneficiary designations without the authority of the court.