Legal Question in Wills and Trusts in Massachusetts
I have a friend, male, 94 years old. He wanted to make some minor changes in his will but was informed by his lawyer that he couldn't because his son had power of attorney and if he wanted to change that status he would have to go to court to prove he's competant. This guy is sharp, lives in a retirement community, does his own shopping, laundry etc. He gave up driving two years ago, his own decision. Why would the burden be on him to prove he's competant? If he gave his son power of attorney, can he take it back? Without court? He's very upset about this. It's a shame at this point in his life he's made to feel like he has no control over this part of his life. I try to tell him not to worry about those things, but it's at the point the he's angry over the fact that he no longer has control over his wishes. His son gets very angry (he's out of state) when he tries to discuss this with him.
1 Answer from Attorneys
I'm very sorry to hear about your friend's situation.
This answer assumes that your friend is not the subject of a guardianship proceeding in Court. If he is, this will not apply.
If your friend is fully competent, and his doctors agree, then your friend has the right to fire his lawyer and revoke his power of attorney in favor of his son. It is important to remember that you do not lose any power just because you grant a power of attorney in favor of someone else. If your friend's lawyer is telling him that he cannot change his will because he has granted a power of attorney, then the lawyer should be fired.
Without knowing your friend, it is impossible to know whether his son is taking advantage of his father for his own benefit, or whether your friend is in need of care and understandably frustrated and upset about it.
If your friend would like a second opinion, he is more than welcome to contact our trusts and estates attorney (we are located in Boston, but have an attorney with a mid-Massachusetts practice reach).
I know others will have excellent advice for your friend, including elder law resources that may be available to him in his community. I wish your friend the best of luck.
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