Legal Question in Wills and Trusts in California

Competency exam results after POA changed

I have had a durable POA for my dad since 2000 and I have been journaling his dementia patterns since that time. In a power struggle, I learned from a relative that my brother coherced my dad into changing the POA to him in August 2007. I have not seen the document or been formally notified of the change by anyone but I've heard that it was notarized. I took dad to a competency test shortly thereafter and the doctor did confirm that he has NOT been competent to make executive decisions since before 2004.

If I have not been formally notified by anyone that the POA changed, and I have this evidence both from the doctor and everything I've journaled over the years, does the original POA go back into effect? Or do I have to still file for a conservatorship?


Asked on 10/05/07, 2:36 pm

2 Answers from Attorneys
Mitchell Roth MW Roth, Professional Law Corporation

Re: Competency exam results after POA changed

Since your brother has a signed POA later than yours, you must file a court action to declare his POA invalid and to enjoin him from acting on behalf of your father using it. The purpose of giving the DPA was to avoid conservatorship.

You should take your documents to a lawyer who can render an opinion after reviewing the documents and then assist you in filing the action. I would use a declaratory relief action and an action for a TRO, Preliminary Injunction and a permanent injunction, not a conservatorship.

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Answered on 10/05/07, 4:10 pm
Donald Field Donald L. Field, Jr., Attorney at Law

Re: Competency exam results after POA changed

you will need to file a petition with the court to have the 2007 power of attorney declared invalid. you should also have an advance health care directive for your father naming you as agent. although a conservatorship may not be essential at this time, that possibility as a longer term confirmation of your authority to make decisions for your father should also be considered.

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Answered on 10/07/07, 2:51 pm


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