Estate Law Questions? Ask an Estate Lawyer.
Hello. My name is***** am an attorney. I will review your question. I may need to clarify facts first. I will answer & we can discuss issues.
Hi again Rick: A will does not deal with incompetency. It would be a power of attorney or similar type of document. So possibly you are referring to a Power of Attorney. If you believe that your Mother is now incompetent and did not know what she was signing, or you want to make sure you are the guardian for your Mother and not someone else, then you would want to start a guardianship proceeding to become the guardian or conservator of her property. You would need an attorney to help you with the paperwork to do so. Your Mother would have a right to object to it if she has the capacity to do so. If you believe that she drafted a will when she did not have the capacity, you can only contest it after she dies. So, a lawyer to petition the court to be her guardian or conservator now could be helpful.
Hi Rick: It sounds like your Mother has her capacity and can make her decisions on her own. If so, there is not much you can do at this point. If she does not have her capacity, then a relative (e.g., one of the children) can petition the court to become conservator or guardian, which would negate the power of attorney. If your Mother dies and you believe she did not have her capacity or was unduly influenced to draft the will and set up the trust, you can contest it. I know the answer is not quite what you want to hear but at least you know what can happen. If you want to discuss this further, please let me know. Best regards.
Hello Rick: Just following up. I know my answer was not exactly what you wanted to hear. But is it better to know what is expected in this situation. I hope that I have provided excellent service. If you are satisfied with your answer, please provide a positive rating between 3 and 5 stars for the service I provided to you. Best regards. If you have a follow up question, just let me know.
Hi Rick: The Power of Attorney allows the person holding it to make financial decisions for your Mother when your Mother is alive. For example, writing checks, handling bank accounts, taxes, etc. Your Mother can revoke it at any time when she has her capacity. Once she dies, the Power of Attorney is no longer valid and has no effect. After death, the will controls the distribution of any money or assets, including a house. I hope that helps you understand better.