Can my oldest brother get POA over my mom without the rest of the family's approval? What if she wasn't of sound mind at the time?

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Can my oldest brother get POA over my mom without the rest of the family's approval? What if she wasn't of sound mind at the time?

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My oldest half brother had my mom who is in assisted living and not of sound mind and also cannot read english, sign POA over all of her assets and is now trying to sell her house which my youngest brother with severe disablity is living and was in her will to keep the house. Seems that all of the brothers are now excluded from her will and he gets everything. There was no one present at signing of POA except my youngest brother and he really had no idea what was going on. Is this legal and what can we do to stop him and make it right?

Elder Abuse Elder Law Power of Attorney (POA)

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First of all, distinguish carefully between the power of attorney and the will. They are separate issues, treat them separately.

1. POA. It is not impossible for an elderly lady in the earlier stages of dementia and unable to read English to create a valid power of attorney, giving her eldest son authority to sell her property and use her assets to, for example, pay her assisted living fees. Not impossible. But there would have to have been certain steps taken, such as ensuring that she was given accurate information about what the POA stated in a way that she could understand, and that she was able to understand what authority she was giving to her son. So: how was this POA drawn up? Did she have a lawyer involved? Was she given a written translation into her own mother-tongue? Have you seen the document?

2. The will. Where are you getting your information about a possible new will and its contents?

3. What sort of disability does the youngest son have?

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A will doesn't apply to anything until an elder passes. An elder cannot stipulate that their assets are not sold for their care unless. No one has to be present at the signing of a POA except the people involved. And no one gets POA "OVER" a person. A person OF SOUND ENOUGH MIND TO DO SO "confers" POA on someone willing to act in their interest, by their own instructions if they are competent, and in their best interests when they are not competent. The POA doesn't need--indeed should NOT--share information with others. A POA strong enough and well enough drafted to allow the sale of real property involved, undoubtedly, an attorney. That Attorney was responsible for examining your Mom to insure that she was well enough to understand what she was doing, and to confer this legal duty on her son, and would examine his wish to serve and his understanding of his duty.
IF there was no attorney and the son simply shoved a paper under Mom's nose and made her sign you are welcome to ask APS to open a case for elder abuse and fraud; that would be giving them your proof of fraud. You also can attend an elder law attorney with your suspicion and proof and ask him how to proceed.
HOWEVER, your Mom's assets stand for HER to use for HER own care. They belong to her, not her siblings, whether disabled or not.
So basically you are down to "did Mom understand what she was doing when she conferred upon this sibling POA to act for her, and is the sibling acting as she wishes, or in her best interests if she is no longer competent.
You are welcome to take this evidence to an elder law attorney and ask that he let you know if there is any way you can proceed to know that the POA is legitimate and was correctly done. As I said, unlikely he could sell real property if not well done, and he is responsible under the law to keep meticulous records of all his actions.

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Get your own lawyer. It may end up in court where a judge will decide who has your mothers best interest and assign it via court order. When we did our POA for our dad, we couldn't be in the room while the atty. talked to our dad.
Agree with other posters...get an attorney like, yesterday.

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This is a very complicated, hot issue. Rather than steer you wrong, I would seek the input of an eldercare attorney. You may need to petition the court to have someone appointed as a guardian so your brother can't do what he is doing. But you need professional advice - and you need it now. There is hope - so don't wait.

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Your mother is not of sound mind. So, no, he cannot make himself the POA legally.

However, it is done all the time. By scam artists, by adult children trying to exploit their parent, by an adult child just trying to skirt the law and be in control-thinking they are protecting their loved one from others (often siblings) trying to control and exploit their loved one.

She wasn't of sound mind a t t h e t i m e? How long ago was this? After discovery, how long have you waited?

Hire an attorney.
Talk to the realtor or escrow to stop the sale if appropriate. A house in escrow cannot be finalized if there are conflicting interests (in writing) to the escrow company. That is my understanding and my experience.

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Contact an atty asap

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Stumpman: Seek an elder law attorney for this matter NOW.

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What do you mean of sound mind? When we were switching POA, MIL diagnosed with dementia. We were told that a diagnosis does not mean she is not of sound mind. Because her memory was going did not mean she did not understand. She had to be able to understand what she was doing, not recall. So I guess my question is….what is sound mind?

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Exactly. People just assume that someone is not considered of sound mind, not understanding that only a judge can determine that an individual no longer has autonomy and declare them incompetent, lacking sound mind.

I think it would save much heartache and family fighting if people found out what the law says.

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Agree with others. You and your siblings need an elder care attorney.
Best wishes.

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Contact an attorney BUT when my mother updated her will no one who was in the will was allowed to be in with her and the attorney. POA doesn’t allow him to change her will and he has to account for all money spent. ( could be different in different states) However if he puts himself on her bank account as a joint account( part owner not as POA which basically only lets him write checks on the account) then all money in that account goes to him when she dies. My sister was my mother’s financial POA, my daughter was joint owner on my mother’s bank account ( my mother was a probate court administrator so handled it smartly) . My daughter owned the money in the account when my mother died, my sister couldn’t even legally write a check from my mother’s account as soon as my mother died. ( my daughter did give my mother’s 3 children the money since she wanted her assets to be divided evenly amount her kids. I gave my daughter a cut lol) BTW If you have a relative you can trust it’s actually a good idea to have them as joint owner of her bank accounts. The money doesn’t go into her estate that way and no one has the pay taxes on it, at least in my state. The owner can get a tax break( forget how much but it covered my mother’s 6 figure accounts) and it’s considered a gift to those the owner give the money so not taxable. We had an attorney figure it out though so don’t do it on your own.

Can my oldest brother get POA over my mom without the rest of the family's approval? What if she wasn't of sound mind at the time?

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