Can anyone give me some guidance on this? I have joint durable POA with my sibling who lives near my dad and helps him with everything. He recently took him to another lawyer to have a new will drawn up. The previous will was pre-dementia years ago. My dad owns his own home that he lives in alone and that home was put in an irrevokable trust when his original will was done. When my brother took him to a new lawyer, neither him nor my dad (who probably didn't remember anyway at this point) didn't tell the new lawyer that the home was in a trust. Now the new lawyer drew up a new will and listed the house as an asset and divided that and my dad's other assets that way he wanted to in his will. Is that okay?? Or will the house still be in the irrevokable trust?
What I have a hard time believing is that this new lawyer didn't realize my dad's memory issues, when my dad repeats everything on a 30 second loop, over and over. I would have thought the lawyer would have questioned my brother on my dad's mental status before allowing another will to be made. My dad is 91. Can anyone give me some guidance on what I should do if anything?? Thanks!
Your DPOA documentation stipulates that you and your co-DPOA are to act jointly and unanimously. One of you, then, cannot facilitate your father's making a major decision such as rewriting his will without the informed consent and active agreement of the other.
But in any case, a person who is mentally incapacitated - such as someone who has a year long diagnosis of dementia and is unable to remember what he did the day before - cannot make a will. For a will to be valid, the testator must be of sound mind.
The new will therefore hasn't a leg to stand on. It is waste paper.
Do you know who the "new" lawyer is?
Are you on speaking terms with your optimistic co-DPOA?
How did all of this come to your attention?
No one said anything to me, and I only found out when my mother was in rehab after hospitalization. My brother claimed he didn't know why he took her to an attorney. ?
It all worked out, because there was wording that a POA couldn't be reimbursed for anything other than direct expenses. Since I wasn't a POA, I requested compensation for all I did for our mother (and got it, including back pay). Ha!
I, too, wondered why the attorney my brother took my mother to didn't realize that something was amiss. I don't know why she removed one of my brothers from POA (other than to protect him from having to do anything at all). I'm pretty sure she bad-mouthed me, claiming I was trying to steal her money (because I was questioning where all her accounts were, and could access them if need be). Because nearly everything was in the trust, POA wasn't as important as it could have been.
She threatened me one time that she would change her inheritance to cut me out. That would have been difficult to do, and she never attempted it.
Not being a POA also gave me leverage, because at one point I suggested that my mother should be placed in a NH nearer to one of the POA (both were states away). That scared them!
We all retained HCPOA.
If you're taking Dad's word for all this, I'd take it with a huge grain of salt. He's the one with dementia, right?
I'd confirm if any of this is true before spending a wad of money on an attorney to fight your brother.
looking at my POA forms, it does say "the 2 of use are to serve jointly by unanimous consent as my dad's agent. If any of us become incapacitated, no further agent needs to be appointed unless there is no one left to serve"
An irrevocable trust cannot be changed even by the grantor of the trust, as the property is now belonging not to that individual but to the trust itself.
Whoever took your Dad to an attorney to change and make new things while your Dad has dementia has done something illegal. While it is up to the ATTORNEY to examine the creator of the will (your Dad) it is also a violation of POA (if this person has POA) to take an elder in who they KNOW has a DIAGNOSIS of dementia.
Since all that you write to us is quite nebulous and it is difficult to comb out the facts in all of this (#1. is your father DIAGNOSED with dementia #2. Is the title of the home in the name of the Trust or only in your father's name #3. was it the POA who took Dad to change things around #4 is there more than one POA acting with equal power; this is unusual as there is normal a 1st and then a second if the first cannot serve. and etc) you honestly need to see an attorney.
It is fine to ask questions of a forum, but we are just normal everyday folk.
Legal and financial and medical questions are the purview of attorneys, accountants and MDs.
Please see an attorney. Have all your facts together as to how the home is titled (trust or in your Dad's name) , letters of diagnosis of dementia, and etc. and take them with you to the attorney's office; this saves time and money.
Best of luck.