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My two sisters and I would like to review the POA that my Stepmother used to make decisions for my Father's affairs; can we?

Allentown, PA |

1. Father was in a nursing home for ~3 years with Alzheimer. 2. Father was moved to three different nursing homes during this time frame. 3. Father passed away 13 Feb 2013 at the age of 87. 4. Father had elder-care through counsel. 5. Father remarried with 3 surviving children from first marriage and a wife and 2 surviving children form 2nd union. 6. Father died with a Will. All assets were left to his wife and her two children. 7. Family home was sold while Father was in the nursing home; he had no knowledge of the sale. 8. Another home was purchased and his wife moved without discussing her plans of selling and moving with the three children from the previous marriage. 9. We could visit our Father, restricted from taking him out on day trips / holiday outings; defined in POA

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Attorney answers 3

Posted

You have three distinct legal issues. First, for the POA, you have a right to file a petition to compel an accounting, and petition for discovery for production of documents. She has no obligation to produce any documents or records without a court order.

If a Will is not on file you can commence litigation to compel filing of same or commence litigation to start probate if you do not have the will, but the surviving spouse generally has the automatic right to be apponted.

Probate documents are a public record, so check the Register of Wills, Orphans Court and Recorder of Deeds for where ever he lived, where he died, where he resided, and where he owned land. If he owned land in more than one jurisdiction, check these records, too.

There is generally a one year statute of limitations to challenge the validity of the will, which can be shortened via petition to court. So time is of the essence in obtaining what documents are in public records and having an attorney review them to take a course of action.

Third, is what happened to assets in his name, and whether there was any gifting or retitling of assets, which if she does not produce records, requires more litigation.

Lastly, each party in this sort of litigation pays their own fees and costs, and she may be able to use the estate's assets to pay any fees and costs she incurs as agent or executrix, while you have to pay your own fees. While in theory you can request legal fees as a matter of equity, either that she pay to the estate fees the estate paid for counsel to represent her, and/or to pay your fees, these are rarely awarded absent your recovering funds. Importantly, if some heirs do not contribute to your fees, but you spend the money, and they benefit from the will being declared null and void, they need not reimburse you but can coast on your coat tails. Hence, it unfortunately sounds like you have a real mess. If you decide you want to commence litigation, start the process ASAP and be prepared to spend a lot of money on the process. Indeed, since only the executor can usually authorize release of medical records for your father, if she refuses to do so, you may wind up having to spend a lot of money in petitions to just obtain permission to subpoena records to determine if you even have a case.

Posted

If your father's house was sold while he was in the nursing home it is probable that his interest was transferred via a power of attorney. That document is most likely on file at the courthouse with the deed in the office of the County Recorder. That document may or may not be the one under which his general affairs were handled, but it is worth taking a look.

Posted

Unless you are referenced in a POA, you have no right to see it but if real estate was transferred via POA, it probably is recorded with deeds and, therefore, in the public records. The second option is to apply to court to direct the POA to account for her actions.

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 (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.