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Ely
Ely, Counselor at Law
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My father passed away 5 months ago and my mother has dementia.

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My father passed away 5 months ago and my mother has dementia. I recently discovered that my younger brother, has obtained Power of Attorney over all of the estate assets without informing me. He has also become the signator on my mother's checking, savings,
and all other financial accounts. How do I counteract his actions so that he does not abuse the financial estate of my mother?
Submitted: 6 years ago.
Category: Legal
Expert:  Ely replied 6 years ago.
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Did your mother sign the PoA when she had dementia already?





Customer: replied 6 years ago.
My 87 year old mother's metal condition has not been formally diagnosed as "Dementia" , but recently, the past three months, her mental and physical condition has continued to worsen. She does not know that she in living in her own home, does not recognize or remember past discussions, is generally thoroughly confused and disoriented. Without my knowledge, my brother has recently gained power of attorney since my mother will sign anything you stick in front of her without question.
Expert:  Ely replied 6 years ago.
Okay, what you have to do is to file for Guardianship of your mother in the local family court. Go to legalzoom.com for the petition.Guardianship is granted when the Judge is convinced that she is no longer able to take care of her life due to her condition. So medical records, medical testimony, etc - will be useful. You'd have to serve all interested family members so they can come and agree or challenge the claim. Your brother will be served too. Once you are the guardian, you can invalidate the POA, and basically make decisions in her place. Or and also, when you file, you may ask for emergency Temporary Orders that invalidate the POA. The POA is on its face already invalid since it was signed w/o the party understanding what they signed (key element needed for contract formation) and just needs the Court to invalidate it.

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Customer: replied 6 years ago.
Can my brother and I have "co-power of attorney"?
Expert:  Ely replied 6 years ago.
Yes, you may, but she'd have to sign one to that effect. And of course, if you plan to challenge it later or say that she has dementia in court, the POA will be invalidated, so you can either draft a dual one (or just have her give you one as well) or go the guardianship route. See, guardianship is exclusive (her decisions/signature won't mean anything after that, if you get it, and only your word/signature for her will count) whereas now, she can still do whatever she wants.

Best of luck in your matter. I'm here if you need any more clarification or follow up information.



I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work - when you put in your payment information, I receive no credit for my time with you unless you press ACCEPT.



There is no fee for follow up questions should you wish to continue in this thread.



Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



If you feel that I went an extra step to help, a bonus would be appreciated!



You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to begin the question with “This Question is for Eli…”
















Edited by Eli on 4/1/2010 at 12:42 AM EST
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Expert:  Ely replied 6 years ago.
I updated my answer - pls see again.