Legal Question in Wills and Trusts in Florida

Power of Attorney and Mental Illness
My father in law is financially stable, but suffers from alzheimer's. My husband suffers from manic depression and has been hospitalized many times in his adult life. My broher in law has had power of attorney over my father in laws affairs for several years. I'm sure there was a will in place before my brother in law got power of attorney. Because of the mental state of both my father in law and husband, can my brother in law legally make changes to the will and any other financial documents (mutual funds, stocks and bond's trust funds etc) that would effect my husband without my husband's knowledge? I ask because my husband's mother died recently of alzheimer's in Florida. My husband lives in New York. For tax purposes my father in law put most of his business dealings in my mother in law's name. And now that she is deceased everything transfers back to my father in law (which my brother in law has power of attorney). Is there a legal way to find out what is going on with the will and other financial affairs without asking my brother in law directly? And is the process expensive?

Asked on 11/27/04, 6:26 am

3 Answers from Attorneys

Walter LeVine Walter D. LeVine, Esq.

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Re: Power of Attorney and Mental Illness

While the Will cannot be changed by the holder of the POA, just what can be done is specified in the POA. Without seeing a copy of what it permits, my comments will be general. A properly drawn POA will allow estate planning to be accomplished during the maker's lifetime, which can result in deviation from the provisions of the Will, since the Will only comes into play when the POA maker dies. Many POA's allow transfers of assets to be made for Medicaid planning, among other things, so this would also permit asset transfers that could thwart a Will. The holder of a POA has fiduciary obligations so there are some controls, although this does not mean that one will always act properly. You do not say if you have children. You do not know that your BIL has acted improperly. It is possible that he may actually do the proper things, such as protecting his father's assets, and placing them in a way that will allow Medicaid planning to preserve the assets for the siblings, or their families (children, not spouses). The Will would not be valid or operational until your FIL died. At that time, your husband, or you, if you have children, as their guardian, could raise questions, if no provision were made of them. Does your FIL have a local attorney. Perhaps he could be contacted to get a copy of the POA or to check what is going on. Unless something makes you suspicious, there is no way to ascertain what is happening, short of contacting your BIL, since your husband is not on the POA. The only thing that can be done, if you have suspicions, is have your husband start a suit for an accounting against his brother.

Answered on 11/30/04, 1:28 pm

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Douglas R. Coenson, Esq.

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Re: Power of Attorney and Mental Illness

The Power of Attorney cannot be used to change his will. Regarding the financial transactions, it will depend on the language in the Power of Attorney. Also, the POA would need to be a Durable POA or Springing POA in order to be effective while he is incapacitated. Should you have further questions, please do not hesitate to contact me.

Answered on 11/29/04, 9:58 am

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