Is it legal for a power of attorney to change the will and bank account of someone with severe dementia?

1 answer | Last updated: Sep 14, 2017
A fellow caregiver asked...

Parent with severe dementia allows durable POA son to change her will and bank account to joint account after spouse dies. Other children have no knowledge of this until surving parent dies. Is this legal when parent is not of sound mind and son ends up spending/taking all parents life savings?

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.

There may be two different answers here about the will and the bank account.

Whether the will change was legal depends on the mother's specific mental condition at the time. Bear in mind that only she had the authority to change her own will; an agent appointed in a power of attorney could not do it for her. Some people retain the legal capacity to change their wills even after they have severe dementia.

To be legally capable of changing her will, the mother should have been: "¢ aware of the nature and the value of the property she was leaving "¢ be aware of the people or organizations she would want to get that property, and "¢ understand that the will was the way to put her plans for that property into effect after her death.

Legal capacity is measured at the time the will was made or amended. Check that date on the new document. If there is good evidence, such as a letter from a treating doctor, that it was made when the mother lacked the required capacity, then the surviving family members may be in a good position to challenge its validity.

As for the change in ownership of the bank account, that could be equally disturbing. But if the mother lacked capacity to make her own financial decisions and the agent son became empowered under the POA, then he would likely be able to change the account to joint ownership. Many POAs do this to make it easier to write checks and pay bills if they are able to arrange it through bank administrators.

However, the POA son was not empowered to use the mother's money for his own during her lifetime. He was only able to spend here money in her own best interests, such as for care and housing.

So if the other children suspect the POA son misused the bank account funds, they should demand an accounting"”preferably one supervised by the local probate or superior court. Some courts automatically impose this accounting requirement on those authorized under a POA; some will order one if there is some question about possible misuse of funds.

Since both the bank ownership transfer and will may have been questionable, it may be wise for the survivors to hire a lawyer for some help in challenging them. While that involves time and expense, they may be able to help speed up the process and hold down legal costs if they are willing to do some of the legwork, such as get some of the required documentation on their own.