My mom has been declared mentally incompetent by the courts. My brother had her sign a retainer for an attorney to represent her when this paperwork was filed. The court had already appointed a GAL. This atty charged almost $2000 to attend the GAL's interview with my mom. Can we ask the court to require the attorney prove that he has an actual contractual relationship with my mom ? And when he can't substantiate that, can we ask to be refunded the nearly $8000 we've already paid him?
It's unfortunate that your siblings are so active on this issue; I have a feeling that they're not involved in her care as much as they should be.
Hang in there; I think you're getting closer to moving forward and past the sibling involvement.
Based on the neurologist's assessment, I think you have a good position to challenge the fees the unwanted attorney is trying to get from your mother. If your mother doesn't remember meeting him and the neurologist believes that your mother lacked contracting capacity, then the alleged contract wasn't entered into with informed consent.
I think the neurologist is the best one to support the fact that it's not a valid contractual relationship, and therefore your mother isn't obligated to pay.
I don't think your brother had the authority to engage the attorney for your mother, as apparently he had none under a DPOA. To me that would also suggest that the contractual relationship wasn't a valid or legitimate one.
I'm not sure whether self dealing would be involved, b/c he didn't have authority, but yet he was acting in his best interests as opposed to those of your mother.
I suspect you may have to have your own attorney support your challenge. It'll be easier than trying to handle it yourself. Attorneys know their ways around contested issues, and you don't want to take a chance that some court rule might be missed and it would jeopardize your case.
You might also consider asking for injunctive relief to prevent your brother (and sister) from engaging anyone else, for anything, with the intention of having you provide funds from your mother's assets.
I also wouldn't rule out a challenge by your brother and sister to your guardianship, so you might want to discuss that with your own attorney.
Hope I've understood the situation correctly.
Somehow, some way or another, a GAL was appointed for your mother. Then your brother was responsible for your mother signing a retainer agreement for an attorney. Were either your brother or you aware when your mother signed the RA that she already had a GAL, and if so, what purpose was the attorney to serve? I.e., for what, specifically? For just attending the interview, representing your mother in a meeting with the GAL?
If your mother knew what she was signing (and that's a question depending on the stage of her dementia), and she had the opportunity to read the Retainer Agreement and understood it, then she would have a relationship for whatever that RA specifically indicated it was for.
However, there could be an issue whether she had a chance to read the entire RA (many people sign agreements w/o reading them), whether she understood everything, and whether it was her intention for the attorney for perform the work generally specified. In addition/alternately, did your brother explain to her and did she understand the purpose of retaining this attorney?
What did the $8K represent? What was it you and your brother expected the attorney to do?
I think more information is needed, but I actually doubt that a court at the same level of appointing a guardian would become involved in this kind of dispute. Lower courts might, but I think you'd have to sue.
This is just an opinion; there are a lot of facts that would need to be considered, such as whether or not the RA authorized the attorney to charge up to $8K of work, what that work was, what was accomplished, etc. It might also be raised that if you didn't want him/her to perform any further work, the attorney should have been so advised.