Sibling trying to divorce parents using POA

[paradocs]

What is the name of your state?

I am writing from the State of Maryland. I found reference on the world wide web to the assertion that an agent (aka attorney-at-fact, principal) can't prepare a Will, vote or seek a divorce on the principal`s behalf at http://www.durable-power-of-attorney.com

Needless to say, I have a sibling with a Durable Power of Attorney (granted by my father before he was declared legally incompetent) who is now trying to divorce my parents. Is there some general legal reason (eg. constitutional, statutory, etc) that prevents someone (like my sibling) from using a Durable Power of Attorney to do just that (eg. divorce my parents). I am specifically looking for some legal doctrine, principal of law and/or previous judicial precedent that prevent a sibling from divorcing my parents!

It is hard to believe that someone other than my mother and father could divorce the two of them. After all, it was my mother and father who decided to get marrired in the first place. How could someone else decide that two people shouldn't be together and then seek a divorce on their behalf?

 

[BlondiePB]

Your sibling is barking up the wrong tree. I don't have the time to explain this at the moment. Perhaps someone else will before I can get back to this. I'm just curious as to why your sibling wants your parents divorced.

 

[paradocs]

> I'm just curious as to why your sibling wants your parents divorced.

Because of a disparity in age between my mother and father (dad married a younger woman and will likely kick off first) and a on-going (decade or older) rift between my mother and my sister... it would seem that my sister is trying to cash in on dad's half of the family home (which is valued at approximately $500,000.00).

Belief it or not, she has found and retained an unscrupulous attorney who has filed the necessary legal paperwork in the Circuit Court for Baltimore County for a Limited divorce thus far (as my sister came and took dad from the family home almost a year ago).

The lawyer's firm (who lists the Chief Judge of the Circuit Court among their law partners) has already agrued in Circuit Court that under the General Power of Attorney granted by my father to my sister (over a dozen years ago) that she "may sell, convey, lease, exchange mortgage, pledge, release, hypothecate, or otherwise deal with, dispose of, exchange, or encumber any property, either real or personal."

The judge who presided over the case chose NOT to dismiss the case in a preliminary hearing designed to do just that. So we're at a judicial stalemate with my mom spending money to defend against my sister's actions! It's only a matter of time before my sister amends the "Limited divorce" to a "Full divorce." My mom's attorney who been around the block a few times (where divorce cases are concerned) cannot find any legal precedent in Maryland to keep the case from moving forward. So I've taken the bull by the horns and am seeking answers. Does my mother have legal recourse against both my sister and this disingenuous lawyer for abusing a Durable POA?

 

[BlondiePB]

Money, I figured that would be why. What a wonderful sister??

To stop all this, either you or your mother immediately must apply for guardianship of person AND property of your father. Once the petition for guardianship is filed, everything that your sister is doing will cease and dad's assests are protected. An Elder Law attorney specializing in guardianships is needed NOW!!

Furthermore, just because your sister has POA for your father, your father can walk right out the door and go where he pleases, like home to his wife or your home. Is there some reason why your father and mother should not be living under the same roof? It may be time to just go and get dad. Unless there's "just cause" to do so, preventing family members from visiting a vulnerable elder is a sign of elder abuse.

For your sister to be doing what she is doing, her attorney would have had to petition the court granting her permission to file for divorce on behalf of your father.

Read up on guardian of property and guardian of person. And, read up on elder abuse.

 

[paradocs]

> Money, I figured that would be why. What a wonderful sister??

Well, I think she's a little Hitler... she's a real piece of work!


> To stop all this, either you or your mother immediately must apply for
> guardianship of person AND property of your father. Once the petition for
> guardianship is filed, everything that your sister is doing will cease and
> dad's assests are protected. An Elder Law attorney specializing in
> guardianships is needed NOW!!

My mother has been advised by her attorney that gaining guardianship would be costly and an uphill battle! It's been said that "possesion is 9/10th of the law!" Frankly, my mother doesn't mind that my sister has dad and his accompanying problems (eg. cantankerous, dementia, etc).


> Furthermore, just because your sister has POA for your father, your father
> can walk right out the door and go where he pleases, like home to his wife
> or your home. Is there some reason why your father and mother should not
> be living under the same roof? It may be time to just go and get dad.
> Unless there's "just cause" to do so, preventing family members from
> visiting a vulnerable elder is a sign of elder abuse.

As mentioned... dad has dementia and their attorney has labelled him as "incompentent" in a courtroom already! And while we haven't tried to see dad, my sister would probably prevent us from seeing dad if we showed up on her doorstep. Can she legally prevent us from seeing dad... in her house? I going to guess that she can! I do think it is unfair that I can see my own father but I'm not ready to cause a ruckus over it at this time!


> For your sister to be doing what she is doing, her attorney would have had
> to petition the court granting her permission to file for divorce on behalf of
> your father.

Neither my mother (nor her attorney) know of such a petition... doesn't mean they aren't hiding the fact that there was a petition... we just don't know of one at this time! All evidence points to the fact that they just filed for divorce using the Durable POA.

I guess I still want (and need to know) what legal reason or doctrine prevents an agent (aka attorney-at-fact, principal) from preparing a Will, voting or from seeking a divorce on the principal`s behalf using a POA?

Again, how could someone else decide that two people shouldn't be together and then seek a divorce on their behalf? Isn't marriage a contract... and who has the right to break that contract? Surely not someone who was never a party to the original contract!

 

[BlondiePB]

paradocs,
I'm not going to look up case law. I do know what powers a guardian can do without court approval and cannot do without court approval. A guardian has more power than a POA. For instance, a guardian does appear in court on behalf of a ward without requesting/petitioning to do so.

Your mother's divorce attorney is absolutely wrong about the cost and the fight. The guardianship petitions and everything else required for establishing the guardianship will only cost around $2,500.00. I'm sure your mother has spent a lot more on a divorce attorney already.

The guardian of the person does have the right to determine where the ward resides, even in your sister's residence. A guardian of the person cannot file for a divorce for a ward without the court's approval. This would have to be approved through Probate Court not Divorce Court.

A guardian of property (estate) cannot change a Will or any other Estate papers without court approval (Probate); a POA can change estate papers Wills/Deeds/Trusts with just the stroke of a pen. The guardianship of estate invalidates the POA powers to do whatever estate transactions the POA has the power to do. Neither a guardian nor a POA can vote on behalf of your father in an election for public office (i.e. president of U.S). The only voting a guardian or POA can vote for on behalf of your father is on securities.

Make an appointment (free initial consultation) with an Elder Law attorney and go with your mother. This is the right way and most cost effective way to go with this. If Assisted Living (ALF) could be an option for dad and dad is a veteran, dad may be eligible for Veteran's benefits for the ALF.

 

[paradocs]

> I'm not going to look up case law. I do know what powers a guardian can
> do without court approval and cannot do without court approval. A
> guardian has more power than a POA. For instance, a guardian does appear
> in court on behalf of a ward without requesting/petitioning to do so.

And maybe case law is what I need at this point. I need to know what guiding principle of law or other legal doctrine allows an agent (eg. attorney-in-fact) to force the divorce of an incompentent father and a normal healthy mother (a mother who doesn't want a divorce). I have read elsewhere that the relationship created between a prinicipal (father in this case) and agent (daughter in this case) is called "fiduciary." Does this fiduciary relationship allow the agent to file for divorce?


> Your mother's divorce attorney is absolutely wrong about the cost and the
> fight. The guardianship petitions and everything else required for
> establishing the guardianship will only cost around $2,500.00. I'm sure your
> mother has spent a lot more on a divorce attorney already.

Regarding "powers of a guardian," my father (principal) stated in the POA that "in the event that it becomes necessary for any Court to appoint a guardian for my person or property, I direct that my daughter shall serve as such guardian." So I am surmising that my mother couldn't gain guardianship even if she tried!


> The guardian of the person does have the right to determine where the
> ward resides, even in your sister's residence. A guardian of the person
> cannot file for a divorce for a ward without the court's approval. This
> would have to be approved through Probate Court not Divorce Court.

Well, my sister has already filed for divorce (on my father's behalf and against my mother's wishes) in the Circuit Court for Baltimore County. What else is there to say?


> A guardian of property (estate) cannot change a Will or any other Estate
> papers without court approval (Probate); a POA can change estate papers
> Wills/Deeds/Trusts with just the stroke of a pen. The guardianship of
> estate invalidates the POA powers to do whatever estate transactions the
> POA has the power to do. Neither a guardian nor a POA can vote on behalf
> of your father in an election for public office (i.e. president of U.S). The
> only voting a guardian or POA can vote for on behalf of your father is on
> securities.

Fair!


> Make an appointment (free initial consultation) with an Elder Law attorney
> and go with your mother. This is the right way and most cost effective way
> to go with this. If Assisted Living (ALF) could be an option for dad and dad
> is a veteran, dad may be eligible for Veteran's benefits for the ALF.

Dad is a veteran of WWII...

 

[BlondiePB]

> I'm not going to look up case law. I do know what powers a guardian can
> do without court approval and cannot do without court approval. A
> guardian has more power than a POA. For instance, a guardian does appear
> in court on behalf of a ward without requesting/petitioning to do so.

And maybe case law is what I need at this point. I need to know what guiding principle of law or other legal doctrine allows an agent (eg. attorney-in-fact) to force the divorce of an incompentent father and a normal healthy mother (a mother who doesn't want a divorce). I have read elsewhere that the relationship created between a prinicipal (father in this case) and agent (daughter in this case) is called "fiduciary." Does this fiduciary relationship allow the agent to file for divorce?

** Ask an Elder Law attorney. That would be the best place to receive an answer to your question. And, it will save your mother at the minimum of $250.00 per hour in research done by the divorce attorney.

> Your mother's divorce attorney is absolutely wrong about the cost and the
> fight. The guardianship petitions and everything else required for
> establishing the guardianship will only cost around $2,500.00. I'm sure your
> mother has spent a lot more on a divorce attorney already.

Regarding "powers of a guardian," my father (principal) stated in the POA that "in the event that it becomes necessary for any Court to appoint a guardian for my person or property, I direct that my daughter shall serve as such guardian." So I am surmising that my mother couldn't gain guardianship even if she tried!


** You are surmising incorrectly. Even if your "Hitler" sister did become guardian, she has to follow guardian "protocol" and explain/answer to the Probate judge.


> The guardian of the person does have the right to determine where the
> ward resides, even in your sister's residence. A guardian of the person
> cannot file for a divorce for a ward without the court's approval. This
> would have to be approved through Probate Court not Divorce Court.

Well, my sister has already filed for divorce (on my father's behalf and against my mother's wishes) in the Circuit Court for Baltimore County. What else is there to say?

** Once petitions for guardianship are filed, everything will IMMEDIATELY come to a "screeching" halt.

> A guardian of property (estate) cannot change a Will or any other Estate
> papers without court approval (Probate); a POA can change estate papers
> Wills/Deeds/Trusts with just the stroke of a pen. The guardianship of
> estate invalidates the POA powers to do whatever estate transactions the
> POA has the power to do. Neither a guardian nor a POA can vote on behalf
> of your father in an election for public office (i.e. president of U.S). The
> only voting a guardian or POA can vote for on behalf of your father is on
> securities.

Fair!


> Make an appointment (free initial consultation) with an Elder Law attorney
> and go with your mother. This is the right way and most cost effective way
> to go with this. If Assisted Living (ALF) could be an option for dad and dad
> is a veteran, dad may be eligible for Veteran's benefits for the ALF.

Dad is a veteran of WWII...

** Should he go to an ALF, I'll gladly help you with how to legally and appropriately qualify him for these benefits.[/QUOTE]


Read the bold above to your replies and please make a call to an Elder Law attorney. You have nothing to lose except a little bit of time. And, time is of the essence. I've pointed you in the right direction.
Best wishes,
BlondiePB