attorney without consent or knowledge from her 3 grown children. is there a way to stop this granddaughter her power of attorney and taking over her estate?
In most states you can petition the clerk of court to declare your mother in law incompetent and appoint a "guardian" to oversee her personal and financial/legal affairs. You must present evidence to the court that she is mentally and/or physically incapable of acting in her own best interest. You may request to be appointed as the guardian, but that decision will rest in the discretion of the clerk of court. You may wish to seek the advice of an attorney in the county where she resides who knows the clerk and the process of filing and obtaining a guardianship there.
While you probably CAN petition to become guardian/conservator for your mother, thereby overturning the POA, I would give this some serious consideration before attempting to do so. Aside from the cost and hassle of the probate proceedings, you may also create lingering family disharmony, by attempting to overturn your mother's apparent wishes. The granddaughter does not need consent or knowledge from the children in order to act under a POA, and your mother had no requirement to provide you with this...at least, not in most states. Perhaps, she chose the granddaughter for a very good reason, (such as the GD is a certified financial planner, great with finances, or has the same view of financial matters that your mother has. Perhaps your mother chose her because she was particularly close to her. Perhaps, she simply wanted to avoid hard feelings by naming one of the kids and not the others.
Whatever the reason, this was your mother's choice. Courts are, (and should be), reluctant to overturn the clear intent of a ward. If the court is simply going to undo your mother's intent with no problem, even fewer people would take the time, effort and money to set up an estate plan, in the first place.
Having said all this, if you have proof that your mother was incompetent when the POA was signed, or if you have proof that the GD exerted undue influence on your mother to be named, OR if you have proof that your niece is financially abusing your mother or squandering assets, or doing anything else that is blatantly inappropriate, then I would go off to the probate court, AFTER hiring a good probate attorney to assist you. Otherwise, I would bite my lip and honor your mother's wishes, even if you do not agree with them.
*** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.
I recommend consulting a local elder law attorney both on your issue and regarding various issues that arise when a loved one enters long term care (such as Medicaid). A well respected elder law attorney in southern Maine is Martin C. Womer, Esq.,
MAINE CENTER FOR ELDER LAW, LLC, 3 Webhannet Place, Suite 1, Kennebunk, ME 04043,
Phone: 207-467-3301 www.mainecenterforelderlaw.com. Martin C. Womer, Esq. Good luck. Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (L.L.M.) in Taxation from N.Y.U. School of Law.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline