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GeorgetownLawyr
GeorgetownLawyr, Attorney
Category: Estate Law
Satisfied Customers: 12049
Experience:  Experience in Probate matters, including will contests and civil litgation related to estates.
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My father had Alzheimers and gave POA to his new wife. One

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My father had Alzheimers and gave POA to his new wife. One year later she got a reverser-mortgage and spent down basically his only asset, his house. Can I sue the bank for the sum of the reverse-mortgage because the POA was void due to his incompetence?

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Was the POA declared void by the court?

If yes, then was it declared void before she took out the reverse mortgage or after?

Customer: replied 3 years ago.

No, the POA was not declared void by the court. How do I go about doing that?But he was seen by a doctor and determined to have "memory disorder" before he drafted his will and gave POA. Also he was referred to the neurologist who immediately detemined that he was financially incompetent.

Ok, thanks. You stated there is nothing left at this point but if you want to get the POA revoked you would have to file for guardianship/conservatorship of your father so that you can be the person who handles his financial affairs. A petition would have to be filed with the probate court for guardianship/conservatorship. As to suing the bank, unfortunately the bank acted properly. A POA was presented to the bank and no court had revoked the POA and the bank had no way of knowing the state of your father, so they acted accordingly. So it is unlikely that you could successfully sue the bank. Please confirm this by consulting with a local attorney in your area as well. I hope this helps clarify.

 

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Customer: replied 3 years ago.

I think guadianship here is the same thing as a personnal representative and his wife is already in that position. But we had a case decided here on May 2 of this here that says contracts with people who are incompetent are voidable but not inherently void. It sounds like I know more of the local law than you do. I was hoping you could shed some more light on the subject for me. If I follow you you are saying because they had no knowledge of his condition I cannot challenge the POA. However in two suis mentioned in this case on May 2, the people had no knowledge of the persons condition and the contract was reversed due to the person being incompetent.The name of that case is Hernandez v, Banks, and it was decided by the court of appeals en banc.Please review the case and then get back to me and see if you still have the same opinion.

Ok, thanks. Your question was could you sue the bank for the sum of the reverse mortgage. The case you site was between the mentally incapacitated person and the tenants. In your case the bank dealt with the wife who had POA and was the PR. Also, I was never aware that the wife was appointed his personal representative (PR), which would have also given her power to take out the mortgage with the bank and strengthens her position.

 

In any event, if you challenge the POA and it is deemed voidable like the case you cite it is at the election of your father that it would be deemed voidable and he is not the one challenging it. His PR would have the power to challenge on his behalf and unfortunately, his PR his the wife in this case. So even if you are successful in having the POA declared voidable, the wife still is PR and would have had the power to take out the mortgage with the bank and she is not mentally incapacitated and the bank contracted with her, not your father.

 

So that is different than the Hernandez case. This is just my opinion and please feel free to get another. I enjoyed reviewing your case by the way and glad to see you have some understanding of the law but there are subtle nuances of each case that can make a prior case that appears the same on the surface, not applicable. Thanks again and kindest regards.

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