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Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
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Experience:  25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
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A daughter has petitioned a court to remove a sons power of

Resolved Question:

A daughter has petitioned a court to remove a sons power of attorney of his mother, and is attempting to separate the mother from living with the son. The mother doesn't want the daughter's actions and the son feels the mother is too old to be dragged into court. Is there any action the son can take, to defeat the petition, any kind of loop hole, any kind of creative legal maneuvering, that will disallow or defeat this petition?
Submitted: 1 year ago.
Category: Legal
Expert:  Andrea, Esq. replied 1 year ago.

Hello, Eddie, and Welcome to JustAnswer, My name is XXXXX XXXXX my goal is to provide you with Excellent Service, I need a bit more information, if you do not mind,

 

1. On what facts has the daughter based her Petition to invalidate the Power o Attorney her mother gave to the son ?

 

2. How old is the mother and are her mental faculties intact ?

 

3. Is this a General Power of Attorney giving the son authority to conduct his mother's affairs ?

 

 

4. In which County of New York and in which Court has the daughter filed her Petition ?

 

 

I might have a couple more questions, depending on the answers to the above questions I have posed to you,

 

 

Thank you and I look forward to your reply,

 

ANDREA

 

 

Customer: replied 1 year ago.

1)fabrication about the son... states son is mentally unstable, states son is violent, and states son manipulates mother... son is gentle, sound mind, rational, and loves mother... daughter is psychopathic liar and obviously jealous of mother's gross preference for son.
2)mother is 87 and very good mental faculties.
3) yes and mother has deeded her own house to son as caretaker child... prior ownership was son and daughter... then back to mother... then back to son only based on daughter's hostile actions. Daughter may now be super jealous and acting out. But mother disowns daughter in will...daughter is unaware of disownment.
4) Queens county

Expert:  Andrea, Esq. replied 1 year ago.

Hi again, Eddie, Thank you for your additional information,

 

It would be very, very difficult, if not impossible for the daughter's to win this case and the basis for my statement is the consideration of all of the following factors which, if I were in your position, would argue to the Judge:

 

1. The mother is of sound mind, knows exactly what she wants and knows exactly what she is doing;

 

2. Mother's decision to give her son Power of Attorney was well thought out, was not taXXXXX XXXXXghtly, and her decision was made only after she carefully considered her position and which of her children would be better suited to take care of her and her affairs if, she found it difficult to to take care of her affairs herself;

 

3. Have the mother testify whether the daughter likes it or not, so that the mother can prove to the Court that she knows perfectly well what she is doing, and her decision should not be disturbed;

 

4. The mother should describe the difficulties she has had with her daughter, describe the many times her daughter took advantage of her, describe the daughter's personality and character as jealous, mean, and vindictive, and compare that with the relationship she has with you, as her son;

 

5. Describe that the daughter never gives a second thought about her as the mother, never asks if she needs anything, lets long periods go y without visiting her, or even calling to see if she needs anything;

 

6. You should describe specific instances showing the daughter as a pathological liar. This will help impeach her credibility as to anything she testifies to in Court;

 

7. You, as well as witnesses who know the daughter, should describe how she has treated her mother;

 

8. Give specific instances where her mother needed something, even a small favor, and the daughter was unwilling to help her mother;

 

9. Give specific instances to prove that this action is motivated by selfish greed and in no way is motivated by any concern for her mother, or her well being;

 

10. Have friends of the mother come in to Court to testify as to her sound mind, any activities she engages in to show her mind is very sharp and she knows exactly what she is doing;

 

11. Probably the most important fact to show the Court is that an individual who is of sound mind is, and should be, free to live their life and do what they want as they see fit, regardless of how old they are, , and that nobody has the right to curtail another person's freedom, or dictate, or orchestrate how another person should live their life..

 

12. The daughter should be depicted as a dictator, and a presumptuous one at that - Who gave her the right to rescind a Power of Attorney that her mother executed of her own free will ?

 

13. Give an example such as - What if the mother decided to buy a new dining room set. If the daughter did not like her mother's decision, or did not like the dining room set, what authority would she have to go into the department store and tell the salesperson to rescind her mother's purchase ? NONE !

 

14. Get statistics of how many individuals over the age of 70 run in the Boston Marathon each year; What would happen if the children of each participant decided on their own that they did not want their parent to enjoy taking part in the Marathon - What, or who would give them the right to withdraw their parent's application for the Marathon ? NOTHING and NOBODY !!!

 

15. Show that the daughter wants to rescind the Power of Attorney solely to acquire control of the mother's assets. Find out If the daughter is having any financial problems, or her husband or children need money to show her self-serving motive and financial incentive are behind her action to gain control of her mother's assets; in seeking some kind of financial trouble or her husband or children need money;

 

16. Bring in character witnesses to testify on behalf of the mother, to describe the daughter, and to describe the son's relationship with his mother.

 

17. When the mother is testifying, she should exhibit righteous indignation at the very thought of her daughter trying to take over her life;

 

18. Have witnesses testify as to the activities which the mother enjoys, what she is involved in, what clubs she belongs to, if she plays any golf, or even Bingo on a regular basis.


If I have not Answered your question completely, please use the "Reply" button to let me know and I will be glad to explain further,

 

If you have specific concerns about what the daughter is doing, please let me know and I will be glad to address them and how to beat them,



Please be kind enough to rate my service to you as "Excellent Service",

 

 

Bonus is a nice way to show the Expert you appreciate their going above and beyond in Answering your questions and concerns and Positive Feedback are greatly appreciated,

 

Thank you for allowing me the opportunity to assist you,



ANDREA

 

 

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Eddie, I see that you have had the opportunity to review my Answer. Please let me know if there are other facts which I can incorporate into the arguments which should be presented to the Court. Please be kind enough to rate my service to you because that is the only way I receive credit for researching your question, furnishing you with information, and Answers and preparing your arguments for Court, otherwise I will not receive any credit for assisting you. Thank you so much for your understanding

 

 

,

Please be kind enough to rate my service to you as "Excellent Service",

 

 

Bonus and Positive Feedback are greatly appreciated,

 

Thank you for allowing me the opportunity to assist you,



ANDREA

Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 11873
Experience: 25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
Andrea, Esq. and 12 other Legal Specialists are ready to help you
Expert:  Andrea, Esq. replied 1 year ago.

Good Afternoon, Eddie, Thank you so much for the "Excellent Service" rating, I appreciate it greatly.

 

You did not say if a hearing date has been assigned to this case, but if you have additional questions, I will be glad to offer my assistance in the preparation of the case.

 

If I may be of service in the future, please feel free to ask for me by typing my name at the beginning of your question, like this,

"For Andrea only ............" And your questions will be directed to me,



Thank you once again for allowing me the opportunity to be of service,



ANDREA

Customer: replied 1 year ago.

Thanks Andrea... I guess there is no way to protect the mother from going to court, which is scheduled for the 29th of April. I understand that this could be a long and drawn out affair... with many sessions... possibly lasting up to a year. What evil would possess any human being to do this to an 87 year old woman... called mom?

Expert:  Andrea, Esq. replied 1 year ago.

Good Evening, Eddie,

 

After I received your reply, I could not get this case out of my thoughts because nothing in this case sits right with me and when I get this feeling, I have always been right.

 

1. There might be a way for the mother not to appear in Court. Whom did the daughter name as defendant(s) in her Petition ?

 

 

2. Did she put the mother's mental capacity in issue in her Petition ?

 

I would be very surprised if the daughter won this case, and here is on what I base my belief - If the daughter had named the mother as a defendant and if she alleged in her Petition that her mother's mental abilities had declined to such a degree that she had become mentally incapacitated, she still would not be able to win the case because the one and only issue in the case is,

 

"Did the mother have the mental capacity to understand the nature of her actions at the time and on the date that she executed the Power of Attorney".

 

If the mother understood the nature of her actions in executing the Power of Attorney in favor of her son, then that is the end of story, end of the case. Nobody can question the acts of any individual who has the mental capacity to think for themselves and the mental ability to take care of their own affairs. If the individual has the legal capacity to perform a legal act, then that individual's act cannot be questioned by anyone, let alone set aside.

 

A Power o Attorney executed by an individual who had the legal capacity to execute a legal document, will not be disturbed by that individual's subsequent mental incapacity. The key is that at the time the individual executed the legal document, he had the legal capacity to do so. So, from any angle one looks at the circumstances surrounding the mother's executing the Power of Attorney, it is a legal document, executed by an individual having the legal capacity, and, therefore, the legal right, to execute that document, and it cannot and should not be disturbed.

 

(If a Principal wants his or her Power of Attorney to remain in effect, even if they become mentally incapacitated at some point in the future, will execute a "Durable Power of Attorney" because it survives the Principal's subsequent mental incapacity.)

 

 

ANDREA

 

 

 

Customer: replied 1 year ago.

Yes Andrea... she put her mother as the defendant. And yes, the mother gave durable power of attorney with forensic psychiatrist statement of competence at time of POA. Andrea, I wish you were the attorney in this case. The mother is enduring a very dangerous stress level for her age, and I fear the worst is a real possibility.

Expert:  Andrea, Esq. replied 1 year ago.

Good Morning, Eddie,

 

 

1. Is this pending in the Queens County Surrogate's Court or did the daughter file it in Supreme Court ?

 

 

2. Did she name anyone else as defendant, the son ? (Are you the son?)

 

3. On what does she base her mother's mental incapacity, i.e., what examples does she give ? She cannot just allege mental incapacity (Or, maybe she did which would make it that much easier for the mother to win since her mental capacity was assured by a psychiatrist)

 

 

4. Can you upload a copy of her Petition ?

 

 

5. Is the mother represented by an attorney ?

 

6. If so, has he/she filed an Answer to the daughter's Petition ?

 

 

 

 

 

Customer: replied 1 year ago.

 


1- SUPREME COURT QUEENS


2-ONLY MOTHER-not as a defendant, but: for the appointment of a Guardian of the person or property of 'mother's name' an alleged person in need of a guardian.>>> At this time, I must keep the parties identities confidential.<<<


3-No specific reason in first section... only that daughter believes that mother cannot take care of her own personal and financial affairs. She wants the court to seize all properties and assets, decide her new place of abode, arrange funeral affairs, etc. etc. etc. Later she states that son is a gambler, (possibly states same about mother) and she assassinates the son's character, as well as her mother's. Many lies written here.


4-Can upload at proper time. Prefer confidentiality for now.


5-yes


6-I believe so... a court date is set for early May now (changed).

Expert:  Andrea, Esq. replied 1 year ago.

Good Afternoon, Eddie,

 

I detest hearing things like this daughter is trying to do to her mother. Instituting these proceedings under the guise of "concern for her mother's well being" when, in fact, all her actions are self serving. I, too, wish I could represent the mother simply to put the daughter in her place. I am a Member of the NY Bar, but the website has rules prohibiting any Expert from taking on customers as clients and I must adhere to the rules. But, thank you for the compliment.

 

I did some more research and think that these sections will prove to be very helpful to the mother and to her attorney in refuting the daughter's allegations. Let me know if you would like a link to the rest of the sections of Article 81. The Proceedings are governed by Article 81 of NewYork's Mental Health Law, Section 81.08(a) requires that the Petitioner allege with specificity why the Respondent (mother) needs a Guardian and/or Conservator and must prove these allegations by clear and convincing evidence through specific examples of the Respondent's conduct. Although the Petition has the burden of proof, it would be an excellent idea to anticipate what she is going to try to prove (and, I stress the word "try"), and by anticipating this, gather as much concrete evidence as if the Respondent had the burden of disproving the Petitioner's allegations. By anticipating the daughter's arguments, the attorney for the mother will be much more prepared to refute anything that the daughter alleges.

 

It would help tremendously if the psychiatrist who attested to the mother's legal capacity at the time she executed the Power of Appointment was called as a witness.

 

And, as I said in my previous Answers, the attorney for the mother and everyone who knows the daughter should try to think of specific instances of the daughter's conduct in the past to show what her ulterior motives really are. And, just as important, ir not more so, catch her in as many lies as possible so that you can impeach her credibility and have the Judge see her for what she really is

 

I am re-printing pertinent parts of Section 81.08(a) and Section 81.12. I have highlighted certain sections for emphasis and to draw your attention to them

 

§81.08(a) Petition

 

(a)

 

3. a description of the alleged incapacitated person's functional
level including that person's ability to manage the activities of daily
living, behavior,
and understanding and appreciation of the nature and
consequences
of any inability to manage the activities of daily living;


4. if powers are sought with respect to the personal needs of the
alleged incapacitated person, specific factual allegations as to the
personal actions or other actual occurrences involving the person
alleged to be incapacitated which are claimed to demonstrate that the
person is likely to suffer harm because he or she cannot adequately
understand and appreciate the nature and conseq
uences of his or her
inability to provide for personal needs;


5. if powers are sought with respect to property management for the
alleged incapacitated person, specific factual allegations as to the
financial transactions
or other actual occurrences involving the person
alleged to be incapacitated
which are claimed to demonstrate that the
person
is likely to suffer harm because he or she cannot adequately
understand and appreciate the nature and consequences of his or her
inability to provide for property management; if powers are sought to
transfer a part of the alleged incapacitated person's property or assets
to or for the benefit of another person, including the petitioner or
guardian, the petition shall include the information required by
subdivision (b) of section 81.21 of this article;


6. the particular powers being sought and their relationship to the
functional level and needs
of the person alleged to be incapacitated;


7. the duration of the powers being sought;

 

 

§ 81.12 Burden and quantum of proof.


(a) A determination that a person is incapacitated under the
provisions of this article must be based on clear and convincing
evidence. The burden of proof shall be on the petitioner.



(b) The court may, for good cause shown, waive the rules of evidence.
The report of the court evaluator may be admitted in evidence if the
court evaluator testifies and is subject to cross examination; provided,
however, that if the court determines that information contained in the
report is, in the particular circumstance of the case, not sufficiently
reliable, the court shall require that the person who provided the
information testify and be subject to cross examination.

 

 

 

Please be kind enough to rate my service to you as "Excellent Service",

Bonus and Positive Feedback are greatly appreciated,



Thank you for allowing me the opportunity to assist you,



ANDREA

 

Customer: replied 1 year ago.

For Andrea only... Hi Andrea... Something very disturbing occurred en route to this case scheduled for May 3. Apparently, the daughter's lawyers find a conflict of interest in the son being represented by the same attorney representing his mother. The only logic I see here, is if the lawyers are basing this COI on the daughter's lies about the mother being 'abused' by the son through manipulation. The daughter is chock full of lies, because she has no real premise, and she is now manipulating the entire courtroom. It seems she wants to mute her brother, or ??? The brother's lawyer says he will ask for adjournment if he must, but this conflicts his original statement to the son that there can be no adjournment. The son is very angry about all this, and feels his constitutional rights are now being violated, and cannot even fathom what these sharpies are planning for his mother. What is your take on this, Andrea?

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Eddie, Sorry I could not Answer your question sooner, but I was offline, visiting with my daughter,

 

Without knowing what has been alleged in the Petition, I cannot say if there is a conflict of interest. From what you have stated so far, I do not see a conflict of interest because the Petition is for the appointment of a Guardian for the mother and, since you stated that the daughter is alleging that the mother is a gambler, I assume she is also asking the Court to appoint a Conservator of her estate. At this stage, only the mother's mental capacity is an issue and that should be the only thing that the daughter should be involved with.

 

Removing the brother as the Attorney in Fact (Person who can act under the POA) for the Principal (Person who gave the POA) is not an issue at present and, therefore, there is no conflict of interest at the present time. The daughter, as Petitioner, must prove that the mother did not have the legal mental capacity to execute the Power of Attorney at the time the mother executed the Power of Attorney . Quite honestly, I do not know how she will prove that the mother did not have legal mental capacity to perform an act at some time in the past. She will have to show that at the time the mother executed the Power of Attorney, the mother was acting strangely and will have to introduce concrete evidence of what acts the mother did and how she was thinking at that time, and also introduce evidence that this was unusual behavior for the mother. If the mother always acted that way, then her behavior was not unusual. So, what might be unusual behavior for one person, might be the norm for another person. The mother's lawyer should introduce the psychiatrist who attests to the mother's mental capacity as soon as the case permits because once her legal mental capacity is established, the Court will not set aside the Power of Attorney, and the brother's conduct will not, or should not, come into question because the mother was and is free to appoint anyone she wants as her Attorney in Fact. Thus, there would be no conflict of interest.

 

If the daughter has alleged in her Petition that the son lacks mental capacity or is a gambler and the Judge allows this into evidence, then there would be a conflict of interest between the that of the mother and that of the brother, in which case, the brother would need his own lawyer. However, until that time, there is only a potential conflict of interest. What the attorney for the mother should do is raise that issue and discuss it with the Judge in open Court so that it is on the record. He should present the facts of the case, what the daughter is trying to prove, and ask the Judge to decide whether or not there is a conflict of interest. Then, if the Judge said there was no conflict of interest, the case can proceed, as scheduled. If the Judge finds that there is a conflict of interest, he would have no choice, but to call a continuance in the case so that the brother can retain counsel. That way, there will not be a delay in the case and the Attorney will not be called in by the Disciplinary Board for engaging in conflicts of interest.

 

Please be kind enough to rate my service to you as "Excellent Service",

Bonus and Positive Feedback are greatly appreciated,



Thank you for allowing me the opportunity to assist you,



ANDREA

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Andrea, Esq.
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