my friends father was place into a nursing home, prior to this the wife filed for divorce. after he was admitted into the home, she dropped the divorce proceedings, and a couple months later she removed him from the home and back to her residence. About a month later she obtained poa, and then a month after that she put him back in another nursing home. While he was in the first nursing home, he had been heavily medicated for aggression, wheelchair bound, and his speech was compromised. the wife has since spent a good portion of the money on renovating her home. what would his family do to prove that the poa was illegally obtained and that there is abuse in her use of the power of attorney? ( the family doesnt beleive he had the mental ability to make this decision)
Estate Planning Attorney
I am a New York lawyer. Once a person has alzheimers, he/she is not legally capable of executing a power of attorney. There is a standard for legal competence that is different from medical incompetence. If you look back in the medical records from his first admission, it is quite likely that he will have been examined and evaluated by a psychiatrist. If this is the case, and he was declared incompetent, this will void the power of attorney. In a practical sense, she did not do a smart thing financially for herself becuase the spouse may be obligated to pay and it is likely that the home will seek reimbursement from her. Also, as a practical matter, your friend should notify any finacial institution that she thinks the spouse may use the power of attorney at, that it may not be valid and they assume liability if they rely on it. She/he should consider consulting a lawyer to apply to become guardian of her father's person and property. While his spouse may challenge it, your friend has many good reasons why the spouse is not fit to be a guardian. Courts are very strict with a guardianship appointment.