Legal Question in Wills and Trusts in New York

Re: Power of attorney and wills legality

Difficult question to answer, as the standard for mental capacity to create a Will (Power of Attorney is probably the same standard) is rather minimal. The standard for making a Will is simply, do I know what my assets are and who are the natural objects of my bounty. This means that if I have a spouse and/or children, I have included all of them and provided for them or explained why I have not provided for them. Thus, if the maker of the Will was a widow/widower with children, the children are mentioned in the Will. They do not need be treated equally, but without an explanation in the Will of why they were not treated equally, could open a claim for undue influence as well as mental competency. As to the use of the P/A to transfer funds, it is entirely possible that this has legitimate purposes, such as preserving funds for the family that might otherwise be lost in private paymnent costs until she was eligible for Medicaid assistance. Thus, the holder of the P/A might be doing legitimate Medicaid eligibility planning. Of course, he could be feathering his own nest also. There are insufficient facts to give you more than this response.