Q: Is this written will or POA paperwork legal if my 91 year old Mom signed it AFTER she had dementia diagnosis?
My brother from AZ came to CA., drew up a written will with my Mom AFTER she was diagnosed, took her to AZ & has kept her there against her will. She has called the police in AZ twice to tell them he was holding her against her will so he took her regular phone away & gave her a cell phone which she can't use without his help. He had her sign POA papers in AZ naming him as her POA. He had her add him to her bank accounts. He has taken total control of her life. Yes she is at the point where she needs help but she has me (her daughter here in CA) who can help her and allow her to stay in her home. (which is what she really wants). She doesn't like my sister in law (who is a retired nurse) and when/if my Mom gets upset about wanting to go home, they give her medication! He is trying to sell her house as well. Is it illegal to do this after a dementia diagnosis? I have paperwork from her Drs. in CA. showing that she was diagnosed before he did this. Is this will or POA legal??
A:
There is no way to know this for sure without assessing your mother's level of understanding at the time she signed the paperwork. Because you "have" Alzheimer's or dementia does not mean you lack testamentary capacity at all times. That is why witnesses and notaries are important. THEY can assess the person's mental status at the time, and their testimony matters.
If you have questions or believe this is something that should be challenged, seek local legal help. That is NOT an easy case to make, and it will be expensive so it is important to go into this with your eyes open!
-- This answer is offered for informational purposes only and does not constitute legal advice or create an attorney/client relationship.
I am licensed to practice in Michigan only. Please seek competent local legal help if you feel you need legal advice
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A: What you describe sounds like financial elder abuse. You should contact Adult Protective Services in the area where your Mom currently resides. I would imagine they already have a file on her if the police have already been called twice. With respect to the dementia diagnosis, someone can have dementia and still have the mental capacity to create a will or Power of Attorney. It would depend upon whether or not her physician, or preferably a neuropsyschologist, stated in writing that she lacked mental capacity. You should also contact an Elder Law Attorney.
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A: The POA sounds invalid and possibly unconscionable because of mental incompetence. This may qualify as elder abuse, which is a crime that you can report to the police. You may need to hire a lawyer in AZ to stop the house sale via an injunction. More details are necessary to provide a professional analysis of your issue. The best first step is an Initial Consultation with an Attorney. You can read more about me, my credentials, awards, honors, testimonials, and media appearances/ publications on my law practice website. I practice law in CA, NY, MA, and DC in the following areas of law: Business & Contracts, Criminal Defense, Divorce & Child Custody, and Education Law. This answer does not constitute legal advice; make any predictions, guarantees, or warranties; or create any Attorney-Client relationship.
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