She has dementia and living in a nursing home. She has a will but my brother that just passed was power of attorney on it.
You need to discuss this issue with your guardianship attorney to get your terminology straight. A will doesn't appoint a power of attorney; it names someone as Executor to be appointed by the probate court and handle final settlement of the decedent's affairs. In any event, the answer is probably no, you can't do a new will for your mother. First, if a guardianship is established, then the court will have ruled that your mother is legally incompetent. A requirement to make a valid will is that the testator be competent at the time she signs the will. That said, a person under guardianship can be competent to make a new Will, but SHE has to do it, not YOU in her stead. Ohio has a procedure for "pre-probating" a will which allows a person under guardianship to make a Will and then present it to the probate court for a hearing to determine that she is, in fact, compentent for this purpose. The testator has to appear at the hearing and testify with respect to the contents of the will, why she is making a new Will, etc. Your mother's current will is not rendered invalid simply because your brother (who is the named executor?) is no longer living. If the will provides for an alternate executor, then that person will be appointed. If it doesn't, then the court will appoint an administrator who applies to handle the estate. I would talk with your guardianship attorney with respect to this matter. I hope this helps.
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There are many legal terms that are used is estate planning. The personal representative works with the probate attorney to handle the administration of the estate after the testator or testatrix dies.
A power of attorney (POA) is a totally different document which designates an agent to act on behalf of the principle. The POA is ONLY effective during the principles' life. It loses all of its power simultaneously with the principles' death.
Work with an experienced estate planning or elder care attorney to assist you.
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It sounds like she does not have the mental capacity to make a new will.
The existing will should have a back up personal representative and if not-the court could appoint one upon her death.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
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