Can a guardian get someone to change their will?

1 answer | Last updated: Sep 14, 2017
Wanderlustlass asked...

I have lived 15 years in the private home (brownstone) of the most generous people (elderly brother and sister) I've met in my life. There were/are 3 of us living on different floors of the brownstone and basically paying what amounts to a small contribution towards electricity and heat. In NYC this is an amazing and incredibly fortunate situation to have for artists who have little to no income. (for anyone, anywhere, really)

The brother died several years ago. When he passed away one of the people who lived with us in the house started "taking care of her", I had never liked or trusted this guy, and in looking into it further found that he'd gotten her to sign over POA and was transferring the building into his name (worth a million+). I was able to get some of her cousins (only family left and also elderly) involved along with an old schoolhood friend and finally the police. He had wiped her clean (about $50,000+)in addition to being days away from putting the building on the market. I don't think the police did enough, he had to move out, but he's living a sweet life and has gotten a new apt (I'm sure with her $$, he wasn't arrested, nor was there an attempt to recover her funds)

This went to court to declare her incompetent(she began suffering from dementia when her brother died)to reverse his POA etc.. .

An Elder Charity was assigned as Guardian and Power of Attorney which is great because her living relatives (cousins) are also elderly and wouldn't be able to deal with all the responsibility.

They care about the situation but don't have the energy to keep on top of things. So I'm trying to make sure everything is going as intended.

My questions:

1) Can we require the Charity/Guardian/Power of Attorney to show us the reports of the decisions and expenditures made on her behalf? I'm sure I can't require it, but can her cousin?

They really don't know what is going on with everything, and I feel that someone who cares about her should be completely informed about all the decisions made on her behalf. I would do this, as I'm really the only one with the energy and ability to be looking into this as they are elderly, but am sure the only people who could require it are her relatives.

2) As Guardian/Power of Attorney could they get her to change her will? Or will it stay as it was before she was declared incompetent? There is concern that either A)the con artist was able to get her to change it leaving everything to him, or that B) the charity could change it to leave property or funds to the charity themselves and the cousins won't receive the property she had intended to go to them.

I'm sure this charity is trustworthy, but just want to be sure before stepping aside while they make all of her living and financial decisions. I'm sure that they must be paying for the full-time, live-in caregiver she now has, as she didn't have any funds left after being cleaned out. And that is absolutely amazing thing for a charity to do, and I'm so happy it exists. But I want to be sure they haven't secured for themselves something that no one has knowledge of.

There are also other important issues involving how they're dealing with the two of us who live in the house, but this is already epic so I'll stop here and hope someone can respond.

Expert Answers

Steve Weisman hosts the nationally syndicated radio show A Touch of Grey, heard on more than 50 stations, including WABC in New York City and KRLA in Los Angeles. He is a practicing lawyer specializing in estate planning and is admitted to practice before the United States Supreme Court. He's a public speaker and commentator who has appeared on many radio and television shows throughout the country, and he's the legal editor of Talkers magazine, the preeminent trade publication of talk radio. His latest book is The Truth About Avoiding Scams.

A Durable Power of Attorney can only be done by the person who is appointing someone else to act on their behalf. Since the elderly sister did not have the mental capacity to make a durable power of attorney, it is most likely that, as you described, a court ordered the Elder Charity to act as her guardian. Unfortunately, although your intentions are pure, you do not have the legal standing to review any accountings of the guardian. The elderly woman has a right to her privacy. Relatives, however could ask to review the accountings. A guardian must receive special permission from the court to do changes of the estate plan of the ward and this would be quite carefully scrutinized by the court for any undue influence or conflicts of interest. I suggest that you bring your concerns to the attention of the District Attorney's Elder Affairs section to inquire further to insure that any illegal elder financial abuse is remedied.