How do I get a POA overturned?

1 answer | Last updated: Sep 14, 2016
Nickyroo asked...

My mothers partner got power of attorney without consent from me her daughter and my sisters , she was suffering severe althsheimeirs unable to sign consent , i believe it was done under duress, how do i get this overturned and is this legal

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.

For a power of attorney to be valid, it must be signed and authorized by the person it is meant to help.

There is no requirement that close relatives"”even daughter"”have to be notified before a power of attorney is completed.

There is a legal requirement, however, that the person for whom such documents are made must have the required mental capacity. "¨"¨This requirement isn't too onerous to meet. Generally, a person must be able to understand what the document is and does -- and must also be able to understand that he or she is making one.

The capacity requirement is measured at the time the document is made or changed -- and that can be a tad tricky. Some people with dementia or Alzheimer's, for example, intermittently have the mental capacity that is legally required."¨"¨

If you wish to contest the legality of a change in a legal document -- and it sounds as if you do -- then you must be able to show that the person actually lacked the required capacity when the document was changed, and that the document was written differently than it would have been if the person had the required mental capacity.

While it may be up to you to collect the best evidence, challenging a power of attorney in the local superior or probate court may realistically require the help of an attorney.

You might try contacting the local bar association and asking whether there is help from experienced elder care attorneys. Since elder fraud has unfortunately become such a big problem, groups in many states now offer low-cost legal assistance in this matter.