Legal Question in Wills and Trusts in Arizona
Removing someone as ''Power of Attorney'' trustee
My sibling has power of attorney over my mother's financial, and perhaps other, affairs.
Over several years other family members have become concerned that my mother's affairs are being mismanaged.
My mother is 86 years old and is growing increasingly senile.
The other family members would like to see what is going on and perhaps pursue having a neutral, outside the family, third party appointed as my mother's Power of Attorney.
What steps should/do we take?
Thank you
Joe Foran
2 Answers from Attorneys
Re: Removing someone as ''Power of Attorney'' trustee
Your mother can revoke the power of attorney if she has the capacity to do so. If the POA is not "durable," it has no force and effect without revocation.
I advise you to go to probate court and seek appointment of a guardian and conservator, this can be a family member, a friend or a certified private fiduciary. This way, your mother's affairs will be conducted by a 3rd party under the supervision of the court. If anyone has a complaint, they can bring it to the attention of the court and get a ruling.
Re: Removing someone as ''Power of Attorney'' trustee
This is not as easy as it is hoped to be in most cases. First, you might convince your mother to appoint another family member as a "joint" attorney-in-fact, who would then have authority to equally review and manage, so that it can be determined how things are going, and get an accounting of the past actions. Sure, your mother could revoke and appoint another, but it is often easier to get an older person to appoint an additional agent than to remove a previously appointed agent.
Recognize that if the appointed sibling has mismanaged or poorly managed, or has taken personal advantage, he or she will be very resistant to any change.
If appointment of another agent is not possible, because your mother cannot be reasonably convinced to do so, or she lacks testamentary capacity now to understand the nature of her signing, you have at least two other options. First, you could get all the other siblings together and hire an attorney to contront the agent and request an accounting in lieu of a court petition, or you can petition the court for guardianship. Guardianship is expensive, time consuming, and may not ber granted if your mother does not meet the definition of "incapacited" within the Arizona statutes.
Either way you will need an estate attorney who also is familiar with litigation, like our office. You can get more information if you like in a free, no ogligation consultation at 480.835.1500.
Best regards,
James D. Jenkins
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