Can a person be legally incompetent and can the power of attorney change the will?

1 answer | Last updated: Sep 15, 2016
A fellow caregiver asked...

i am a live in care giver for my grandma who terminal , my uncle has her will she said she didn 't sign anything, he took her to his attorney and just had her sign anyway he has been milking her out of money for years i have proof, she was going to change her will and make me executer she gave me power of attorney , can i change her will ? or give the house to someone as a gift . his name is on the deed as suvivorship

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Your question raises a number of legal and practical issues.

Even though your grandma has a terminal condition, her mental state now and in the past may also be very important is determining what legal documents are in effect.

If your grandma was not mentally competent"”that is, unable to understand what a will is and which people or organizations she would like to get her property, then she would not have been able to make a valid will. Keep in mind that this competency is measured at the time the document was made. So if she finalized the will years ago, it might have been at a time when she had adequate mental capacity.

Attorneys making a will for a client should be clear that the client is mentally competent to make the document, And the law generally requires two witnesses to sign it, also verifying that the willmaker is mentally competent.

So while it is possible to contest a will"”and bear in mind no will has any effect until your grandma dies"”it will likely be quite difficult, and likely require you to a hire a lawyer for help. If you are contemplating this, do keep detailed evidence of her mental state at the time she made the will"”such as doctors' and neighbors' statements. Your claim that she intended you to be executor will be especially tough to prove"”unless you have it in a signed writing from your grandma when she was mentally competent"”and that's extremely unlikely.

If she is no longer mentally competent, then it is likely that your powers and duties as her agent in the power of attorney have taken effect. Because you have the right to manage her property and finances in her best interests, that should stop your uncle from taking any possible additional bad action.

Being your grandmother's agent under a power of attorney does not give you the right to change her will, however. And it does not likely give you the right to make a gift of her house if he is listed on the title with right of survivorship.