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Damien Bosco
Damien Bosco, Attorney
Category: Estate Law
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My mother has in her will that at the moment she is declared

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My mother has in her will that at the moment she is declared incompetent thst the lawyer takes over her estate. He will be in control of everything thats hers. Im assuming because she said he does. I dont know the law. My mother was baker acted for three days because she called 911 saying there was people in her house that woukdnt leave. She was hallucinating. The week before she had fallen and the ambulance came and took her to tge hospital. They sent her to a rehb center where she had me come get her the same dsy. Teo days later she calls o11 and thsts where were at now. I already asked you a question similiar to this and you answered it. My question is can i and woukd it be in my best interest to get a lawyer and contest her will before he takes over because it wint be long tge way she was talking? Thanks Rick

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.

Customer: replied 10 months ago.
My mother will not tell me what's in the will. Shes already cut my half brother out of her will becsuse he borrowed money and didnt pay it back. Just so you onow how she can be. She has a trust set up for me so when she dies everything goes in a trust fund for me but the lawyer is suppose to be in control of the trust and gives it to me as i need it. Which is hsrd to believe dshe would do that and i dont know thst she hasbut i do know he has power of attorney once she becomes incompetent. Mu brother whichis out of the picture id trying to get me to get an attorney and try to change it dobi have power of attorney. I think our mother woukd contest it. I should just ask what kindcof advice do you have. There sending her to rehab by the way. When shes strong enough to go home their going to evaluate her again. She seems alright again. Just letting you know. I need dome advice. Thank you

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.

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Customer: replied 9 months ago.
I would lije to add. My mothers house got destroyed 1 years ago here in florida when hurricane gene came thru. She has changed the will 3 times sense then. Went from my brother having power of attorney to me then to her lawyer having power of attorney. I guess i dont quiet understand. Let me see if im right. What the attorney has with power of attorney is the power to say if she lives or dies with tge dr of course. Has nothing to do with her will is what your saying right. Is the will another issue?

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.

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