Power of Attorney question - We feel robbed! Do we have any recourse? - URGENT!!!

On 21 Jan 2005,, "Lin" <lin@no_thanks.com> in substance directly and
in apparently implicit part indirectly said/asked:

[About 5 years ago, my practically illiterate 76 year-old father was diagnosed with and prescribed medication to treat him for Parkinson's disease. My mom and one of my two brothers and I then consulted his physicians about what appeared to be his daily craziness, and the physicians said that such behavior may be due to the medication. My father objected to the further psychiatric evaluation they suggested, however, and so he contacted his other son, who had been estranged from my mother and brother and me for about ten years, and the two of them arranged to check him out of the hospital. That son then helped my father become a resident of an elder care home, somehow helped my father divorce my mom after ~50 years of marriage, was given a POA by my father to help manage my father's finances, and was assisted by that son to move to an elder care home where he evenutally died. If it could be proven that the predominant reason that son did these things was so that he could gain control of my father and his assets, that he would not allow any other family member near my father during and since the divorce for fear that he may lose control of my father, and that heused coercive or other undue influence with respect to his near-illiterate father to have his father leave his estate to that son while leaving nothing to other family members, is there anything that can be done about such an extreme abuse of power if his other children have not waited too long to take action?]

Probably, Yes.

Since the eldest son has POA, does that mean that he can take everything that belonged to my father leaving nothing for other family members?

The authority granted by a POA is limited by whatever the POA itself
direct (you don't say) and (in effect) "dies" (the POA no longer is
effective) automatically on the death of the principal (here, your
father).

You do not actually say anywhere in your posting/query that while your
father was alive the brother in question misappropriated funds or
other property to that brother's own personal use rather than for the
benefit of his father and just a "guess" or "belief" that that brother
"probably" did this would not (and should not) be suffient to require
any judicially-granted remedy against him, although (if they act in a
sufficiently timely fashion) persons demonstrably having standing to
do so (e.g., other beneficiaries named in the will of the deceased
principal, if he left a will, or his intestate distributees, if he
died without a will) may seek and probably woud be entitled to an
accounting by the agent for his acts under color of the POA while the
principal was alive.

Whether your older brother who had been granted a POA (or you or your
other brother or your mother) would be entitled to inherit from your
father depends on whether your father did leave a will and on what it
said if he did (information you don't actually report) or on what (if
anything) the divorce decree said about this subject and on whatever
are the relevant jursidiction's intestacy laws if your father died
without a will (still other information you don't provide).

[The scenario summarized above is predicated on my guess that my older brother was probably able to get my father to make such a will and on what I believe to have been his intentions, although I do not explicitly say anywhere in my posting/query that my father actually did make a will of the sort I theorize above or address what might be alternative explanations, e.g., of the sort hypothesized below and so also do not say that a scenario close to the one theorized below would be realistically provably incorrect. Would such guess about my brother's intentions and my belief about what he probably did and why as summarized above be sufficient to establish that he was guilty of the sort of extreme abuse of power I theorize? ]

No.

[If in the course of disputed litigation my estranged from me older brother was preponderently credible in convincing a court something close to that his primary motivation was to assist my father, whose now divorced wife and other family members had subjected him to medically inadequate and inappropriate medication that caused him to behave erratically including suicidally; that such symptoms and behaviors were alleviated when my father moved with that son's assistance to the elder care facility which probably would not have admitted him if he behaved in ways that created havoc or was suicidal and which became my father's final residence; that a necessary even if not explicitly articulated premise of the court in granting my father a divorce was that my father was competent to be granted such relief; that the judgment of divorce terminated whatever prior claims and rights his former wife would have had if she were not divorced from him to a portion of his of his estate; and that, if my father did die leaving a will which did not provide for me or for my other brother, despite my father having been almost illiterate, in the formal eduction sense of that term, he was sufficiently knowledgeable as a practical matter about the basic nature of his estate and his intended beneficiaries and subject to coercive or other undue by my older brother such that he was competent to have made such a will, would the court very probably rule along these lines? ]

Yes

[Assuming that my father died leaving a will that was not provably the product of fraud or coercion or some other form of undue influence that did not provide for his legally divorced wife, if an earlier validly granted judgment of divorce did not provide for her being entitled to any portion of his estate, or for two of his three adult children, would those children have a basis to challenge such a will if the only ground for so doing was a guess by one of them that that will was probably the result of what she believes was misconduct by another sibling who the father trusted? ]

No

[Is a conclusory statement that a family member "feels robbed" not supported by clearly stated realistically provable specific facts that evidence having been "robbed" suffient to support the grant of judicial relief on the basis just of such a "feeling"?]

No

[Is it possible that a less conclusory and instead more particularized statement of the facts would support what is said merely on the basis of a "belief" and what a poster "feels" or is a "guess"?]

Yes.

[Lin]

<nospam@isp.com> wrote in message news:41f28ad5.6251551@news.east.earthlink.net...

On 21 Jan 2005,, "Lin" <lin@no_thanks.com> in substance directly and in apparently implicit part indirectly said/asked:

<snip>

The authority granted by a POA is limited by whatever the POA itself direct (you don't say) and (in effect) "dies" (the POA no longer is effective) automatically on the death of the principal (here, your father).

I just gained access to a copy of the POA from family members over
the weekend. It is a "Durable Power of Attorney for
Health Care and Directive to Physicians".

You do not actually say anywhere in your posting/query that while your father was alive the brother in question misappropriated funds or other property to that brother's own personal use rather than for the benefit of his father and just a "guess" or "belief" that that brother "probably" did this would not (and should not) be suffient to require any judicially-granted remedy against him, although (if they act in a sufficiently timely fashion) persons demonstrably having standing to do so (e.g., other beneficiaries named in the will of the deceased principal, if he left a will, or his intestate distributees, if he died without a will) may seek and probably woud be entitled to an accounting by the agent for his acts under color of the POA while the principal was alive. Whether your older brother who had been granted a POA (or you or your other brother or your mother) would be entitled to inherit from your father depends on whether your father did leave a will and on what it said if he did (information you don't actually report) or on what (if anything) the divorce decree said about this subject and on whatever are the relevant jursidiction's intestacy laws if your father died without a will (still other information you don't provide).

My eldest brother would not allow other family members to
see my father while he was alive. There is much that
was kept hidden, which is why I don't know whether
there is a will or what has been happening to my fathers funds.

On 24 Jan 2005,"Lin" <lin@no_thanks.com> further said:

I just gained access to a copy of the POA [my recently deceased father gave my older brother]. It is a "Durable Power of Attorney for Health Care and Directive to Physicians".

In your posting/query that began this thread, you implied (and you
seem not to confirm) that you had not read or even seen the POA your
father gave the older of your two brothers who for some time has been
estranged from you and your other brother and your mother who your
father divorced, yet you speculatively asked anyway whether that "POA
.. . . mean[s] that [your older brother] can take everything that
belonged to my father leaving nothing for other family members?"

Your present follow-up still does not report what the body of the POA
to which you now refer says and yet, despite its title (which appears
to indicate otherwise), it is at least theoretically possible that it
contains language giving some sort of finanical authority to your
older brother as long as your father remained alive. However, if the
title you quote accurately describes that instrument's subject matter
(as you can verify by reading that document in full - right?), you
seem to be saying that it does not refer to your father's finances
and, instead, (only?) describes the extent of your older brother's
authority while your father was alive to communicate health care
decisions on your father's behalf in circumstances as stated therein
if/when your father was not able to do so. You therefore still have
not said whether there is any factually well-founded basis for you to
"guess" (as you earlier said you did) that, possibly, your older
brother misappropriated funds or other assets belonging to your
father.

My eldest brother would not allow other family members to see my father while he was alive.

Though in this respect, too, you were not especially clear about the
underlying facts in this respect, what you did say in your intitiating
posting was consistent with your father having had what he considered
good reason to ask that brother to discourage you and your other
brother and your mother from visiting with your father. However, as
long as he remained competent to do so, it was open to your father to
tell you and your other brother about the probable nature of his
estate (and, indeed, if he wished, to give you very detailed monetary
information in this connection) and whether he was leaving a will that
would provide in some way for either/both of you.

There is much that was kept hidden, which is why I don't know whether there is a will or what has been happening to my fathers funds.

You characterize this thread as posing an "URGENT!!!" question but
seem to be suggesting that you've chosen not even to ask your older
brother what he knows about what has been happening to your father's
funds and other assets or even whether your father died leaving a will
and, if so, what it provides and, if not, what (if anything) that
brother is or contemplates soon doing about the administraton of your
father's estate.

Especially if your older brother would claim that your father died
leaving a will that did not provide for you and your other brother (or
for your father's divorced former spouse), it is at least in is
economic self-interest to enable you to verify whether this is the
fact.

If your father died owning assets but without leaving a will, then (as
previously noted) you and your other brother would be entitled to a
share along with your older brother if you act in a sufficiently
practical and timely manner to make and pursue such a claim.

Influenced by in what state your father was permanently residing when
he died (procedures in this respect vary somewhat from one state to
another), there are procedures by which (if they don't wait too long)
one or more adult children of a deceased person (e.g., you?) who
probably died leaving an estate may ask the applicable court to
appoint one or the other of them or some other person suitable to the
court as the administrator of an estate not disposed of by will.

[\- Prof. Jonez©\]

Lin wrote:

<nospam@isp.com> wrote in message news:41f28ad5.6251551@news.east.earthlink.net...

<snip>

I just gained access to a copy of the POA from family members over the weekend. It is a "Durable Power of Attorney for Health Care and Directive to Physicians".

Then it is limited to the aspects of "Health Care and Directives to Physicians".

Being it is "durable" means it stays in effect after your father many otherwise
become incompetent, incapacitated, unconscious, etc (i.e. a coma). It still
expires upon the death of your father.

<snip obtuse pontificating blather from bombastic fool nospam@isp.com>

My eldest brother would not allow other family members to see my father while he was alive. There is much that was kept hidden, which is why I don't know whether there is a will or what has been happening to my fathers funds.

Did you try asking, directly?

If you fear your brother as much as you portend, and the estate is
large enough to matter, then you'd be wise to immediately hire
your own attorney to investigate such matters.

[Lin]

<nospam@isp.com> wrote in message news:41f577d0.3815627@news.east.earthlink.net...

On 24 Jan 2005,"Lin" <lin@no_thanks.com> further said:

In your posting/query that began this thread, you implied (and you seem not to confirm) that you had not read or even seen the POA your father gave the older of your two brothers who for some time has been estranged from you and your other brother and your mother who your father divorced, yet you speculatively asked anyway whether that "POA . . . mean[s] that [your older brother] can take everything that belonged to my father leaving nothing for other family members?" Your present follow-up still does not report what the body of the POA to which you now refer says and yet, despite its title (which appears to indicate otherwise), it is at least theoretically possible that it contains language giving some sort of finanical authority to your older brother as long as your father remained alive. However, if the title you quote accurately describes that instrument's subject matter (as you can verify by reading that document in full - right?), you seem to be saying that it does not refer to your father's finances and, instead, (only?) describes the extent of your older brother's authority while your father was alive to communicate health care decisions on your father's behalf in circumstances as stated therein if/when your father was not able to do so. You therefore still have not said whether there is any factually well-founded basis for you to "guess" (as you earlier said you did) that, possibly, your older brother misappropriated funds or other assets belonging to your father.

Yes, the title accurately describes the POA.
The POA does not refer to my father's finances.

Though in this respect, too, you were not especially clear about the underlying facts in this respect, what you did say in your intitiating posting was consistent with your father having had what he considered good reason to ask that brother to discourage you and your other brother and your mother from visiting with your father. However, as long as he remained competent to do so, it was open to your father to tell you and your other brother about the probable nature of his estate (and, indeed, if he wished, to give you very detailed monetary information in this connection) and whether he was leaving a will that would provide in some way for either/both of you.

My eldest brother made it very difficult for us to even have a glimpse of
my father. He did not offer us any information about where my father was
kept. And, when we did manage to find the facility where my father was
located, the staff was instructed by my eldest brother to contact him if
any visitors were to ask for my father. Not long after the staff contacts
my eldest brother, he would arrive to instruct the staff to ask us to leave.
Also, the facility did not provide my father with a phone.
On one visit, my father said to my other brother that he was told by
my eldest brother that if he did not proceed with the divorce,
he would have to go to jail, which is one of many reasons why we say that
my father was coerced into getting a divorce. My elderly father was
nearly illiterate and ignorant of legal matters, which is why
my eldest brother was able to take advantage of the situation.

You characterize this thread as posing an "URGENT!!!" question but seem to be suggesting that you've chosen not even to ask your older brother what he knows about what has been happening to your father's funds and other assets or even whether your father died leaving a will and, if so, what it provides and, if not, what (if anything) that brother is or contemplates soon doing about the administraton of your father's estate. Especially if your older brother would claim that your father died leaving a will that did not provide for you and your other brother (or for your father's divorced former spouse), it is at least in is economic self-interest to enable you to verify whether this is the fact.

The contents of the will is as yet unknown and
asking does not seem appropriate at this time.
Also, under the circumstances, there is much bad feelings between
my eldest brother and the rest of the family. For my parents generation
and culture, divorce is taboo, especially at their age and after
~50 years of marriage. My eldest brother is avoided like the plague.

If your father died owning assets but without leaving a will, then (as previously noted) you and your other brother would be entitled to a share along with your older brother if you act in a sufficiently practical and timely manner to make and pursue such a claim. Influenced by in what state your father was permanently residing when he died (procedures in this respect vary somewhat from one state to another), there are procedures by which (if they don't wait too long) one or more adult children of a deceased person (e.g., you?) who probably died leaving an estate may ask the applicable court to appoint one or the other of them or some other person suitable to the court as the administrator of an estate not disposed of by will.

[Lin]

" "- Prof. Jonez©"" <jonez@norcom.ca> wrote in message news:urvJd.10$Ro.153@news.uswest.net...

Lin wrote:

Then it is limited to the aspects of "Health Care and Directives to Physicians". Being it is "durable" means it stays in effect after your father many otherwise become incompetent, incapacitated, unconscious, etc (i.e. a coma). It still expires upon the death of your father. <snip obtuse pontificating blather from bombastic fool nospam@isp.com>

Did you try asking, directly? If you fear your brother as much as you portend, and the estate is large enough to matter, then you'd be wise to immediately hire your own attorney to investigate such matters.

The sad thing about the whole ugly story is that my parents did not
have a whole lot to the estate. He kept suing my poor elderly mother for
things during and after the divorce. And then, he dares to complain about
how he suffered taking care of my ill elderly father (who was kept in
an elder care home) for the past five or so years. I wonder if
he realizes that my mother has been serving and caring for
my father for the past 50 years.