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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 41221
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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I live in Arizona, My husband is 86 yrs old. This is our second

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I live in Arizona, My husband is 86 yrs old. This is our second marriage we have been married since Oct. 2001. before we were married I signed a prenuptial agreement saying that the estate with the land was to be left the way his deceased wife and he had set it up for there children. We do have a home and an acre of land that is ours and is paid for. The kids have power of attorney over the land and I have power of attorney over his health. He has been declared incompetent to make any legal or financial decisions. There lawyer wants him to sign a form saying he is resigning from the Farm as the owner and turning every thing over to the children. They say it will hurt his reputation if every one knows he is incompetent. I do not have a good feeling about what they want. In the first place my husband reputation will stand as a good honest man. He has no control over what is happening to him now. Am I wrong? What will it do if he resignes? Should he sign such a document? I really don't know and I am feeling alone. I just want what is best for my husband. Can you give me some advice?
Thank you for your question. Please permit me to assist you with your concerns.

If I may ask, how would this signing harm you or your husband? Or how do you think it may harm him or you?

I will be more than happy to answer and assist you, but just know that as I am not your attorney, I cannot advise you. I can provide you with legal information and options, but any 'legal advice' has to be provided by a local attorney if you have one.

Please advise and I will be happy to help.
Customer: replied 3 years ago.

I do not know that it would hurt us, I just have a bad feeling that perhaps there is a secondary motive. From what I understand the estate says that if he is unable or unwilling the kids will take over. He is unable not unwilling. With that said I do not understand why they want him to resign. His son said that if he didn't it was unfair to him because he was signing documents that should have his Dads signature on them not his. Well from what I understand if he is unable to make a decision then the kids should have no problem.

Thank you for your follow-up, Carol.

Technically either being unable or unwilling is sufficient. If he is unable, they can demand to take over especially if it may somehow harm the business. As for why he may need to resign, one reason that comes to mind may be the fact that signing as his 'power of attorney' may make it appear weaker to third parties. Then there may be a claim that he is incompetent, the contracts signed may not be binding or valid, and there is a greater, although still unlikely, a risk that the other party may claim that the agreements should be void because not signed by the original party. From purely a business reason I do see the children's point of view.

What you can potentially request for yourself is a condition that you would resign if they grant a formal 'life estate' for the farm to you and to your spouse for as long as you both live. Then, if you resign, they would not be able to evict or remove you from the premises, which is what I suspect is your fear.

Good luck.

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