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My oldest half brother had my mom who is in assisted living and not of sound mind and also cannot read english, sign POA over all of her assets and is now trying to sell her house which my youngest brother with severe disablity is living and was in her will to keep the house. Seems that all of the brothers are now excluded from her will and he gets everything. There was no one present at signing of POA except my youngest brother and he really had no idea what was going on. Is this legal and what can we do to stop him and make it right?

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First of all, distinguish carefully between the power of attorney and the will. They are separate issues, treat them separately.

1. POA. It is not impossible for an elderly lady in the earlier stages of dementia and unable to read English to create a valid power of attorney, giving her eldest son authority to sell her property and use her assets to, for example, pay her assisted living fees. Not impossible. But there would have to have been certain steps taken, such as ensuring that she was given accurate information about what the POA stated in a way that she could understand, and that she was able to understand what authority she was giving to her son. So: how was this POA drawn up? Did she have a lawyer involved? Was she given a written translation into her own mother-tongue? Have you seen the document?

2. The will. Where are you getting your information about a possible new will and its contents?

3. What sort of disability does the youngest son have?
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Countrymouse gave a clarifying response. Also, the PoA's authority ends the moment of your mom's death. The minute she passes the PoA is done with their duties and has no further power over her assets. Then the Executor of the Will's authority is activated and he begins to manage the dispensation of the remaining estate. Unless your mom created a written Will and it designates the same brother as the Executor, he doesn't have any authority over the remaining assets once she passes.

No one can "get" PoA "over" another person. The person (your mom) is the only one who can assign a PoA -- anyone of her choosing -- and no one else has to "approve" of her choice.

Perhaps you are thinking about guardianship? He could have pursued legal guardianship of her, but not sure how he could do that without anyone else in the family knowing about it prior to it going before a judge in court. Also, it can be an extremely expensive process.
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Riverdale Jan 2022
If accounts are in shared names.then would I still fill out checks that have my name on them with only my name omitting the POA after my signature?
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A will doesn't apply to anything until an elder passes. An elder cannot stipulate that their assets are not sold for their care unless. No one has to be present at the signing of a POA except the people involved. And no one gets POA "OVER" a person. A person OF SOUND ENOUGH MIND TO DO SO "confers" POA on someone willing to act in their interest, by their own instructions if they are competent, and in their best interests when they are not competent. The POA doesn't need--indeed should NOT--share information with others. A POA strong enough and well enough drafted to allow the sale of real property involved, undoubtedly, an attorney. That Attorney was responsible for examining your Mom to insure that she was well enough to understand what she was doing, and to confer this legal duty on her son, and would examine his wish to serve and his understanding of his duty.
IF there was no attorney and the son simply shoved a paper under Mom's nose and made her sign you are welcome to ask APS to open a case for elder abuse and fraud; that would be giving them your proof of fraud. You also can attend an elder law attorney with your suspicion and proof and ask him how to proceed.
HOWEVER, your Mom's assets stand for HER to use for HER own care. They belong to her, not her siblings, whether disabled or not.
So basically you are down to "did Mom understand what she was doing when she conferred upon this sibling POA to act for her, and is the sibling acting as she wishes, or in her best interests if she is no longer competent.
You are welcome to take this evidence to an elder law attorney and ask that he let you know if there is any way you can proceed to know that the POA is legitimate and was correctly done. As I said, unlikely he could sell real property if not well done, and he is responsible under the law to keep meticulous records of all his actions.
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If the POA is not notarized it is not legal.

In my state, Arizona, it must not only be notarized but witnessed.

Legally a POA can do nothing to benefit themselves and they can NOT change a will. However, a will doesn't mean anything until the person dies.

So, if your mom needs care in a facility, all of her assets are at her disposal to provide for that care.

Your mom can grant POA to whomever she chooses, just so you know.

One thing I would like to add. If your brother is disabled enough to not understand what was going on, your mom may have decided that he could not reasonably live alone and care for a house. Perhaps that is what has been revealed with your mom in AL.

It is definitely easier to get your brother the help he needs if he doesn't have anything, like a house. So it is a good thing for him and whomever is his guardian.
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Each state has their own notary and witness requirements for a power of attorney. I googled and found this:

https://info.legalzoom.com/article/does-power-attorney-require-notarization

One witness: Utah

Two witnesses: Alabama, Connecticut, Delaware, District of Columbia, Georgia, Indiana, Louisiana, Maine, Massachusetts, Michigan, Missouri, Montana, Nevada, New York, Oregon, Oklahoma, Pennsylvania, South Carolina, South Dakota, Vermont, Virginia, Washington, West Virginia, and Wisconsin.

Two witnesses or a notary: Alaska, Arizona, Arkansas, California, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Minnesota, Mississippi, Nebraska, New Hampshire, New Jersey, North Dakota, Ohio, Rhode Island, Tennessee, Texas, and Wyoming.

Two witnesses and a notary: Florida, North Carolina, Iowa, Kansas, and Kentucky.

Notary: New Mexico
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Isthisrealyreal avatar
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Isthisrealyreal Jan 2022
DeckApe, this information is not correct. AZ requires a notary and 1 witness.

This is for DPOA which would be required to sell property. DHCPOA is different requirements.
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Your mother is not of sound mind. So, no, he cannot make himself the POA legally.

However, it is done all the time. By scam artists, by adult children trying to exploit their parent, by an adult child just trying to skirt the law and be in control-thinking they are protecting their loved one from others (often siblings) trying to control and exploit their loved one.

She wasn't of sound mind a t t h e t i m e? How long ago was this? After discovery, how long have you waited?

Hire an attorney.
Talk to the realtor or escrow to stop the sale if appropriate. A house in escrow cannot be finalized if there are conflicting interests (in writing) to the escrow company. That is my understanding and my experience.
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Contact an atty asap
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Contact a lawyer who deals with elder law in the state/province where mom and brother live. Seems like a case of fraud. However, your mom can give POA to anybody she wishes as long as she is mentally competent - which seems the problem.
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I'm not sure but as much as an attorney is very important, a letter from your mom's doctor (neurologist) stating that she has not been of sound mind since that time predating the newly changed legal papers might be helpful.
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Move FAST to get an attorney. You have to stop this ASAP. The courts have to step in and stop your brother before he sellls everything and spends the money. Always more impossible to get money back.

Your disabled brother needs you to act NOW.
Good luck and prayers for The Lords guidance.
ps. Also. If she’s incapable you could also go to department of elder abuse and get them involved depending upon which state your in. Florida is on top of people abusing seniors. Signing a fraud POA is financial abuse since your mom needs money to pay her bills

Yes. Also get letter of her inability to make decisions from doctors ASAP
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You need to get an attorney, like yesterday. If what you say is correct, no one can get a legal POA if the one giving the power is not of sound mind. Even being elderly and with the circumstances you mention, an attorney needs to get an injunction against selling the house. Also, if your younger brother's disabilities are in part mental, he can not sign as a witness as even a witness has to be aware of what is being signed. You will need to get an attorney. Also contact whatever elder abuse services you have. Where I live its Department of Human Services, Elder Abuse and there's is even a hot line. I called it for my sister and I couldn't believe how quickly they moved on it. They even threatened a large bank with a lawsuit filed by the state if they continued to refuse co-operation. But do it now...right now before the properties are sold and proceeds disappear. Again, if your mother is not of sound mind she can not give power of attorney nor can a witness sign if he/she has a mental challenge.
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R
rovana Jan 2022
Is it possible the brother wants to sell the house to pay for care for mom? The fact that the will says the house is to go to younger brother is not a guarantee that it will happen - by the time mom has had the assets used for her care may mean no assets are left to distribute.
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Get your own lawyer. It may end up in court where a judge will decide who has your mothers best interest and assign it via court order. When we did our POA for our dad, we couldn't be in the room while the atty. talked to our dad.
Agree with other posters...get an attorney like, yesterday.
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Agree with others. You and your siblings need an elder care attorney.
Best wishes.
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Someone who is not of sound mind cannot sign legal papers. You would need an attorney to contest the POA and will. Is it worth it? Is your brother planning to be responsible for your mother's care and his disabled brother's care, as POA? If he is, this may be a reasonable solution. Have you talked to your half-brother about his plans for your youngest brother? Perhaps he's planning to move him to a facility that can care for him.
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This is a very complicated, hot issue. Rather than steer you wrong, I would seek the input of an eldercare attorney. You may need to petition the court to have someone appointed as a guardian so your brother can't do what he is doing. But you need professional advice - and you need it now. There is hope - so don't wait.
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Stumpman: Seek an elder law attorney for this matter NOW.
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I would hire an attorney who practices elder law. I have POA for My and did for My Dad before he passed. I can act on their behalf but not in my own.

financial institutions have fiduciary duties to recognize unusual financial activity by the POA and are requires to report it.

I sold my parents house and signed the paperwork but it certainly didn't go in my bank account, it went to theirs for example.

POA does not give authority iver the disabled son as well. Could it be that there was legal authority given to this brother to take over in the case Mom became incapacitated?
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Contact an attorney BUT when my mother updated her will no one who was in the will was allowed to be in with her and the attorney. POA doesn’t allow him to change her will and he has to account for all money spent. ( could be different in different states) However if he puts himself on her bank account as a joint account( part owner not as POA which basically only lets him write checks on the account) then all money in that account goes to him when she dies. My sister was my mother’s financial POA, my daughter was joint owner on my mother’s bank account ( my mother was a probate court administrator so handled it smartly) . My daughter owned the money in the account when my mother died, my sister couldn’t even legally write a check from my mother’s account as soon as my mother died. ( my daughter did give my mother’s 3 children the money since she wanted her assets to be divided evenly amount her kids. I gave my daughter a cut lol) BTW If you have a relative you can trust it’s actually a good idea to have them as joint owner of her bank accounts. The money doesn’t go into her estate that way and no one has the pay taxes on it, at least in my state. The owner can get a tax break( forget how much but it covered my mother’s 6 figure accounts) and it’s considered a gift to those the owner give the money so not taxable. We had an attorney figure it out though so don’t do it on your own.
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What do you mean of sound mind? When we were switching POA, MIL diagnosed with dementia. We were told that a diagnosis does not mean she is not of sound mind. Because her memory was going did not mean she did not understand. She had to be able to understand what she was doing, not recall. So I guess my question is….what is sound mind?
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Isthisrealyreal avatar
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Isthisrealyreal Jan 2022
Exactly. People just assume that someone is not considered of sound mind, not understanding that only a judge can determine that an individual no longer has autonomy and declare them incompetent, lacking sound mind.

I think it would save much heartache and family fighting if people found out what the law says.
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