Disqualification of ”attorney-in-fact” pursuant to a durable power of attorney
How do you determine if a surviving spouse is mentally incapable of fulfilling the ”attorney-in-fact” after the death of her husband and what should the altenate do to establish that fact?
Re: Disqualification of ”attorney-in-fact” pursuant to a durable power of atto
It sounds like there were two elders, a husband and a wife. Prior to the husband’s death, the couple created a durable power of attorney naming the wife and another person (referred to in the question as the alternate) to control the husband’s estate before he died. Now the alternate wants to get control of the wife’s estate. The alternate’s question is “how do I get the wife disqualified?” The answer is that the alternate must get a doctor to state that the wife is incompetent. It may be that this statement will be sufficient to take the power away from the wife and put it into the hands of the alternate if there are documents somewhere that make that provision. Even without the documents, if the people in the picture are happy with the alternate taking over the estate there may be no problem with just taking the doctor’s statement to the bank, etc., and taking over the estate. If there is resistence to the take over the alternate is going to have to file for conservatorship with the probate court. The filing fee for this is high (about $525.00) because a court investigator has to be paid to visit the wife and check out the situation. If the court investigator is satisfied that the alternate is acting in the best interests of the wife he will advise the court to appoint the alternate as the wife’s conservator. The court investigators are pretty good. All you have to do is be cooperative and they are likely to be glad that you care about the elderly wife.
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