What can I do to contest a power of attorney with a forged signature?

Formybuddy asked...

My fiance suffered a bad stroke August of 2007. He gave me his power of attorney, and I took care of him and everything that needed to be done. He has a brother who lives in Florida and a son who lives here. At the time, his son was not having anything to do with his father, and the brother was more than happy to have me take care of everything. In January of 2008, I became ill and could not go to the nursing home for about three weeks. His brother has come and convinced my fiance that he has taken care of all his business, which is way far from the truth. He revoked my power of attorney. When I saw the signature, it was obvious that it was not my fiance's. When I talked to him he said that he did not want the POA changed and that his brother had taken his hand and signed his name for him. I have been told that the power of attorney is not legal if it is not actually his signature. What recourse do I have for that and do I have a case against the stress that I have gone through?

Expert Answer

Amy Shelf is an attorney specializing in estate planning and probate for individuals and families of all means.

It must be stressful indeed to help your fiance through a stroke and all of the medical and emotional struggles connected to that, even apart from the possible family battle you now face. Unfortunately, stories like yours are all too common.

You are correct; a power of attorney produced by fraud is not valid. But representatives at a bank or other institution would not likely know this, at least not by looking at it. It may be very important to protect your fiancé from his brother acting on this power of attorney or from additional intrusions by family members who do not have his best interests at heart.

There are a number of protective steps you can take.

If your fiancé has the capacity to execute a power of attorney, it might be wise and effective to hire an attorney to help him make another one naming you as the agent representing his interests alone. Sometimes the presence of an attorney, even one who is simply helping prepare documents, can put everyone on their best behavior and thus prevent people from trying to pull a fast one on a family member.

It is also a good idea to alert the staff of the nursing home to the fact that you believe your fiancé is vulnerable, and that his son and brother may be trying to take advantage of him. Many states or counties now have statutes or agencies designated to protect elderly individuals or dependent adults, and someone on staff at the nursing home should be able to direct you to the proper agency.

You could also petition a court to be appointed your fiancee’s conservator or guardian -- different terms are used depending upon your state -- so that you would act for him with respect to any documents or financial transactions. Given that your fiancé is vulnerable to the improper or “undue” influence of his brother, this may be appropriate.  If your fiancé is able to communicate with you and others, it will be very helpful, maybe even necessary, to have his agreement and cooperation to begin this process.

Alternatively, you may be able to petition the court to have the fraudulent power of attorney declared invalid. This might be a more short-term solution, however; you won’t then be in a position to protect your fiancée from further harmful actions. In addition, unless you can prove that the power was produced by fraud or that your fiance suffered financial harm, the court may not be enthusiastic about intervening.

Keep in mind that your fiance’s brother and son have a legal relationship with him that you do not have. This does not necessarily mean that you are not entitled to take action on your fiancee’s behalf, but it may mean that there is a presumption in their favor that you will have to overcome.

Finally, the stress that you have suffered is probably yours alone to bear and there is in all likelihood not a legal “case” to bring. However, it may be possible to repair your relationships with your fiance’s family members. Perhaps they are acting under some misconceptions about you or your role in his life. An open discussion, with or without a trained social worker or therapist, might help.