Can a incapacitated individual change his beneficiary?

[timglove]

Hi everyone, here is a question from Virginia:

My Dad was deemed incompetent in December 2008. My brother and I were named co-guardians. My brother was named conservator, although he never arranged the surety bond nor did he ever file reports with the local commissioner of accounts. In June of this year Dad was hospitalized, and my brother had my Dad sign a letter eliminating me as a 50% beneficiary on his life insurance policy and making my brother 100%. In addition to being incompetent, Dad was delirious on meds at the time and I'm sure had no idea what he was signing. (I have witnesses to this, including the Dr.). The insurance company did not switch the beneficiary since the letter will not suffice...they require the official form that was never completed. After he left with his signed letter, he never saw Dad again and he died two months later. The insurance company paid the benefit to each of us at 50% since their procedure for beneficiary change was not followed. Now...my brother has sued me for my 50%. The case is pending.

I am awaiting a consultation with my attorney but in the interim I have questions. Does Dad's request have merit since he has been declared incompetent? Can a guardian change the beneficiary to himself solely without court approval? (I believe I read this...although this question is moot since he had Dad sign and not himself). Does my brother's character play a role in the case? (He pled guilty to three counts of fraud last year.) Is his role as conservator void since he never purchased a surety bond? If my case seems so favorable, why in the heck would an attorney file this for him?

I'm sorry for all the questions everyone, I am just very shaken by this. Brothers...ha!

 

[Betty]

After reading your post, your brother can sue but he will most likely
not win. I can't see it.

If it can be proven your father was incompetent, such as with a statement
by his dr., at the time he signed the letter, you brother most likely will
not win. Also, the ins. co. did not accept the letter since it was not on the
correct form & never changed the beneficiaries.

Your brother pleading guilty to fraud previously does not help his case.

You need your own attorney which it seems you are getting but I don't see
how a court/judge will rule in favor of your brother. I just can't make a
definite statement that you will win since i am not the judge. Discuss
everything will your attorney - they are better to advise you but in "my
opinion" you should get to keep your share of the proceeds.

 

[timglove]

After reading your post, your brother can sue but he will most likely
not win. I can't see it.

If it can be proven your father was incompetent, such as with a statement
by his dr., at the time he signed the letter, you brother most likely will
not win. Also, the ins. co. did not accept the letter since it was not on the
correct form & never changed the beneficiaries.

Your brother pleading guilty to fraud previously does not help his case.

You need your own attorney which it seems you are getting but I don't see
how a court/judge will rule in favor of your brother. I just can't make a
definite statement that you will win since i am not the judge. Discuss
everything will your attorney - they are better to advise you but in "my
opinion" you should get to keep your share of the proceeds.

Thanks Betty. I have the paperwork in which the courts ruled Dad was incompetent back in 2008. That decision was never challenged or reversed. I also have the doc and two witnesses as to his acute state when the letter was actually signed. I can also prove my brother withdrew thousands of dollars from my Dad's account in May of this year and pocketed a good chunk of it. I am most definitely getting well proven attorney to handle the matter for me. I just hope we can counter sue for my legal expenses on the grounds this is a frivolous case.

 

[Kiawah]

Nice brother......sheez

 

[Betty]

Thanks Betty. I have the paperwork in which the courts ruled Dad was incompetent back in 2008. That decision was never challenged or reversed. I also have the doc and two witnesses as to his acute state when the letter was actually signed. I can also prove my brother withdrew thousands of dollars from my Dad's account in May of this year and pocketed a good chunk of it. I am most definitely getting well proven attorney to handle the matter for me. I just hope we can counter sue for my legal expenses on the grounds this is a frivolous case.

Ok, sounds like you have everything in order & you're getting an attorney. You can ask your attorney about suing for court costs & legal expenses.

Good luck though sounds like a win for you to me.

 

[timglove]

Nice brother......sheez

I know, right? I'm sure you'll find it hard to believe that while I was with Dad everyday until his death, my "brother" never saw him again after the day the letter was signed.

 

[Betty]

It's too bad that things like that happen in families but they do.