Legal Question in Wills and Trusts in Massachusetts

Re: Durable power of attorney in question

The prior advice by Attorney Fanger is very good. In order to revoke a DPOA, you have to notified in writing of the revocation, so your DPOA was good until your father's death absent written instructions.

I would contact all your father's account holders and an attorney to represent your interests. I would also suggest you challenge the appointment of your sibling as executor based upon his behavior.

Good Luck.

Re: Durable power of attorney in question

My condolences at your loss.

You would start by retaining an attorney to assist you in determining if your DPOA was revoked and replaced by a properly executed DPOA in favor of your sibling(s) and to perhaps file an objection to any probate administration wherein the fiduciary gained a financial advantage by undue influence. Good Luck!

Re: Durable power of attorney in question

It depends on what your sib did with the DPOA?

Re: Durable power of attorney in question

It sounds like your brother/sister got your dad to sign a DPOA when he was quite ill, and may have used the DPOA to transfer assets into his own name. The first thing you need to do is confirm that your DPOA was revoked. If, for instance, you know where your dad had any bank or brokerage accounts, you could inquire of those institutions and present them with the DPOA that was executed in your favor. If they say that the DPOA has been revoked, they should be able to give you a copy of the "new" DPOA revoking yours. Since a DPOA must be notarized, you can check the notarization and then contact the person who supposedly notarized your dad's signature to make sure it was truly signed before that notary. You should also send a letter or e-mail (no phone calls--you must lay a paper trail) to your sibling asking to see the DPOA and asking for an explanation as to why it was changed in your dad's final week of life (there may be a valid reason, as you live out of state and your sibling apparently does not). If you don't get a ready explanation, you should position yourself to immediately challenge both the will (in case that likewise was changed) and to challenge the appointment of your sibling as executor. The will must be filed within 30 days of the date of death. It is possible that your sibling has retained an attorney to file the will and to administer the estate. Among the questions you should ask your sibling is whether he/she has hired an attorney, and then get the name and phone number for that attorney. If everything is done according to the time required by law, the will be published within 30 days of death and a notice will issue to you as an "heir at law" that the will has nominated your sibling as executor. It will give you a date by which you have to file an appearance to challenge the will and/or challenge your sibling' appointment as executor.

You have obvious reasons to be concerned about the DPOA change and its timing. If your sibling benefitted financially from the DPOA and/or any change in the will, and if your sibling was managing your dad's financews or provided financial advice or support to your dad, your sibling might have to disgorge any financial benefit he got from the DPOA, and any change to the will might be invalidated, based upon a legal principle known as "undue influence", which in some instances shifts what we call the "burden of proof" to the person benefitting from these changes, to show that the transaction was NOT the product of undue influence. It is a very powerful tool that is often used in these situations and may be applicable here.

I apologize if I have given you too much information, but these situations are understandably distressing and complicated.

Feel free to contact me if you wish to discuss anything in more detail, or to simply have me clarify any of the advice I have provided.