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Regarding the Revocable Trust between my mother (deceased)

and step-father (Age 92):Just prior...
Regarding the Revocable Trust between my mother (deceased) and step-father (Age 92):Just prior to my mother's death, the Veterans Administration notified us by means of written correspondence that my stepfather has been definitively found to be incompetent by a physician and that he is not shown to be able to manage his own personal affairs to include disbursement of funds. The power of attorney to my stepfather tells me that his lawyer says there must be two doctors confirming mental incapacity in order to stop my stepfather from selling off trust assets. I believe there is such evidence however I can't get anybody to take me seriously regarding this issue. I am co-Successor Trustee along with my stepsister. My stepsister is the wife of my stepfather's P.O.A. She claims her Christian beliefs allow her to defer to her husband in all decisions regarding the Trust.The P.O.A. told me it is his goal (not my stepfather's goal) to shed the liability of the real property immediately. The plan is to "sell" the home to my younger brother for $50,000 with the terms of $0 down, 0% interest and payments of $300 per month for approx 14 years. The house is habitable but in need of considerable repair and maintenance. It has a fixer-upper value, according to the opinion of one REALTOR of between $50K and $65K. The monthly payments will be divided between myself and my older sister and older brother.I think this is a very bad deal and certainly not in my stepfather's best interest. I have voiced objection, but was informed by the P.O.A. that they are going ahead with the deal. Trust matters in Las Cruces, New Mexico, Dona Ana County are handled by District Court and not by the Probate Judge.I am thinking I need to file a notice of lis pendens as it is my intention, as co-successor trustee, to attempt to cause the trust to be executed as written. It's practically no financial benefit to me whichever way the results go. I just feel I owe it to my mother to try to act upon her wishes and intentions. I honestly believe that my stepfather also had the same wishes and intentions as she did when they both entered into the trust.What do you think I should do?
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Answered in 1 hour by:
9/5/2017
Attorney2
Attorney2, Attorney
Category: Estate Law
Satisfied Customers: 8,985
Experience: 30 Years in General Practice and Estate Planning
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Welcome and thank you for your question.

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You would want to file an injunction to stop the sale.

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A Lis pendens could be filed once you file a lawsuit.

"lis pendens

(lease pen-dense) n. Latin for "a suit pending," a written notice that a lawsuit has been filed which concerns the title to real property or some interest in that real property. The lis pendens (or notice of pending action) is filed with the clerk of the court, certified that it has been filed, and then recorded with the County Recorder. This gives notice to the defendant who owns real estate that there is a claim on the property, and the recording informs the general public (and particularly anyone interested in buying or financing the property) that there is this potential claim against it. The lis pendens must include a legal description of the real property, and the lawsuit must involve the property." http://dictionary.law.com/Default.aspx?selected=1172

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Customer reply replied 11 months ago
Sorry, there was a security block on my debit card so I had to deal with that before I could see your response. How do I file an injunction? Also, since the P.O.A. and his wife (co-successor trustee) are denying that my stepfather is incompetent (they got his primary care physician to state that he's OK) I presently have no access to the trust bank accounts. I am not looking to spend my stepfather's money. I am only looking to do my duty as co-successor trustee.My stepfather said, in front of his four children and myself, that he was going to leave the trust intact. Yet within days of my mother's death all of the bank accounts that were owned by the trust were closed. I thought I had a copy of the entire trust agreement but it turns out that I only have a copy of the summary. The lawyer who wrote the trust will not provide a full copy for me. The P.O.A. will not supply a copy to me. I am aware that if my stepfather was truly competent he would have the power and authority to manage and control, buy, sell, and transfer the trust property and enjoy and exercise all powers and rights over and concerning said property and the proceeds thereof as fully and amply as though said Trustee were the absolute and qualified owner etc, etc.My mother and stepfather were married for 40 years so I'll not deny that he has marital rights. It is probably meaningless to mention that my mother brought most of the assets to the marriage. She owned the house, and a small parcel of land in another county before the marriage and he brought nothing but himself and one dependent. He has four children - she has four children each had one minor child at the time of marriage. A car and a motor home were purchased from her share of proceeds from the sale property in Maine that belonged to her family. They were both collecting Social Security until her death. She had an IRA and a pension from New Mexico State University. He had an IRA, a life insurance annuity and two monthly pensions from previous employment. Even with that, their liquid assets were rapidly being depleted because they both needed to be in an assisted living home.Because she required a very complicated heart valve surgery and for other reasons I won't detail here she gave P.O.A. to me. This was something that my stepfather could not understand, even his daughter tried to explain to him why it was a good thing but he was very belligerent about that and couldn't understand why his signature wasn't required for her to give P.O.A. With the help of a law firm in Utah, I gathered all the information needed for him to apply for the Aid and Attendance Special Pension from the V.A. This included obtaining a physician assessment (the doctor specialized in internal medicine) there were also hospital reports and reports from a nephrologist (kidney specialist) . I, personally, did not seek to have him declared incompetent but that is what the V.A. determined. Apparently that is not good enough though and now we have conflicting doctor opinions.It is possible to make an injunction barring sale of assets pending an assessment by a third doctor who specializes in age-related dementia and Alzheimer's Disease?I apologize for the length of the entry here. I am venting and apparently not very good at editing what I write.
Customer reply replied 11 months ago
To condense to just the questions at hand: How do I file an injunction? Is it possible to make a condition to lifting the injunction be getting a qualified, third opinion to my stepfather's competency?

You will want the assistance of a local Attorney. I can provide Attorneys in your area that provide FREE consultations. I can also provide information for the process and sample forms.

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Yes, you would file an injunction to determine capacity. https://secure.uslegalforms.com/cgi-bin/forms/query.pl?S-B-NM-B-injunction

Since these documents are drafted by Attorneys based on the circumstances there are no set forms. Let me provide a link for local Attorneys in the area that can assist.

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You can also bring an action against the POA for breach of fiduciary duty http://www.nolo.com/legal-encyclopedia/elder-financial-abuse-scams-33007.html

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Attorney2
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Thank you.

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Customer reply replied 11 months ago
I don't think Bruce, the P.O.A. is trying to steal money from Ken. I think he really is trying to protect what he has left in case Ken lives to be 100 or something (it could happen, I suppose). I believe they thought they had to close the accounts because of the fact that I was my mother's P.O.A. when she was living and thus had access to the accounts. Perhaps they didn't think it was adequate to change passwords and deactivate her debit card.
This brings me to the practices of U.S. Bank: They were considered guardians of the trust. They, of course, won't tell me anything regarding whether there are any accounts left with them. My sister and I hand delivered the V.A. incompetence finding dated May 2 and my mother's death certificate dated May 16th, the banker was out but we left copies. When the banker called me back she told me that,as far as she was concerned, Ken was perfectly fine to make these decisions, after all he would physically come to the bank almost every day to check on his account balances and she had personally sat with him for hours at a time, multiple times to help him pay bills and sort out his confusion regarding his accounts. (Ken would go to Wal-Mart every day, sometimes several times in one day and come back three or four hours later with a bunch of stuff and usually forget what he had gone for in the first place. He never knew from day to day what he had spent). When I asked the banker if she was a doctor, qualified to make that determination and if that was a normal thing she did for all her customers she told me the conversation was over and disconnected the call.

You can file a complaint against a financial institution if they are not cooperating.

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Customer reply replied 11 months ago
Moments ago I received in the mail an 11 page document that I would like to have you take a look at. I am hesitant to sign it. The document seems to suggest that we (my siblings and I would be acting with trivial greed should we not agree and sign off on this.

You do no want to sign this if you do not agree to the sale to your brother with a division of proceeds.

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