Charlotte, NC asked in Estate Planning and Probate for Maryland

Q: We have an old will for my mother, my brother is has the Power of Attorney from the existing will. We want revocation

Of the old will and make a new one

Related Topics:
2 Lawyer Answers
Mark Oakley
Mark Oakley
Answered
  • Estate Planning Lawyer
  • Rockville, MD
  • Licensed in Maryland

A: You need a lawyer in the state where your mother resides (you list Charlotte, NC, in the posting). So long as your mother is mentally competent, then she can execute a new Will. However, a Will does not act as or grant someone the authority to act as someone's attorney-in-fact like a power of attorney does; rather, a Will only appoints an executor or personal representative to manage the state of the person once they are deceased. The appointment of an executor or personal representative under a Will does not confer ANY powers or authority to act while the person is still living. If your mother wants somebody to manage her financial affairs while she is alive, or to make health care decisions when she cannot do so, then she must execute a power of attorney naming that person, and she can only do that if she is mentally competent. If she is not mentally competent, then the only option is to petition a court where she resides to appoint a guardian over her. Consult a lawyer in the state where your mother resides to review her documents and make recommendation consistent with her wishes.

Cedulie Renee Laumann agrees with this answer

Cedulie Renee Laumann
Cedulie Renee Laumann
Answered
  • Estate Planning Lawyer
  • Crownsville, MD
  • Licensed in Maryland

A: Each person in this state has the right to create their own Will, based on their own wishes. The law gives family zero authority to demand changes in a parent's Will.

If someone is competent, they (and only they) can make any Will they wish to make. However, once they become incompetent, their planning is "locked" and no one else can override or change their plan. Sometimes family try to get an incompetent person to change planning documents (whether with good or bad intentions). This tends to make a bad situation worse and can give rise to all sorts of legal claims against the family members who orchestrate the changes. Where a loved one is incompetent, family can step in by asking for adult guardianship. Where a guardian is necessary due to mental or other incompetency the Court has rules in place to allow a responsible family member to take over decision making to protect the interest of the vulnerable adult.

A Power of Attorney only has effect when someone is alive and stops the moment someone dies. A Will is exactly opposite as it has no effect when someone is alive and starts the moment someone dies. If the family has concern over who holds a Power of Attorney and thinks the powers are being abused, it is possible to file in the courts.

While not legal advice I hope the above helps generally address the topic raised.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.