Can legal documents be changed after a person is diagnosed with Alzheimer’s and the attorney isn’t notified by the family member?
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Can legal documents be changed after a person is diagnosed with Alzheimer’s and the attorney isn’t notified by the family member?
Mother diagnosed in January with
Alzheimer’s and sister came in June.
She took her to attorney and had
Power of Attorney changed and did not
advise attorney of diagnosis.
Asked on January 17, 2017 under Estate Planning, Arkansas
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 7 years ago | Contributor
The issue is not the diagnosis per se: it's whether at the time of the change, your mother was mentally competent or not. (You can have Alzheimer's and, especially in the early stages, still be mentally competent). If your mother was competent, the changes are valid; if not, they are invalid, because a mentally incompetent person cannot enter into, create, change, etc. legal documents.
If you believe your mother was not competent at the time and want to challenge the POA, you'd need to bring a legal action challenging it, in which you'd have to prove in court, by a "preponderance of the evidence" (i.e. that it was more likely than not that your mother was then incompetent), using medical testimony and evidence which shows that your mother was incompetent at the time she changed the POA. This may be difficult to do. If you want to explore this option, consult with an elder law attorney.
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