Legal Question in Elder Law in New York

What would be the next step if a power of attorney was created years ago, notarized, but never filed in New York State, then a new one was created illegally a week or so ago by a sibling and notarized in Virginia. This new POA takes away all rights from the other half that was on the original. This was done illegally because the person needing the POA has dementia and was diagnosed over six years ago, therefore he/she in not competent to sign or agree to a new POA. Can this POA that was created and notarized in Virginia be filed in New York State, and should we have filed the original? How do we go about proving that she was not competent to sign this document? This is very obvious financial exploitation� thank you!


Asked on 1/21/13, 4:22 pm

1 Answer from Attorneys

Richard Bryan Richard Bryan Attorney PC

This is very unfortunately a common circumstance. You have a real problem, mostly for one big reason because you're here in New York and the alleged incapacitated person is in Virginia. There is no such concept as "filing a Power of Attorney." A Power of Attorney doesn't get filed "officially" with the court or clerk or anyone else, except perhaps if you consider giving it to the bank as 'filing' the Power of Attorney. Or sometimes the PoA is "filed" along with a deed to real property; otherwise it's not really "filed" anywhere.

Regardless, what actions has the new agent been taking to make you state 'this is very obvious financial exploitation'? Making a new Power of Attorney alone is not "financial exploitation." Exploitation would only be indicated when and if the new agent uses the principal's money to benefit someone other than the principal. If someone else has blocked you out and is now "taking over" management of the person's financial affairs, that's not exploitation without anything more. If the agent started making gifts of the principal's money, that might be financial exploitation.

In any event, if you are intent on nullifying the Virginia Power of Attorney on the grounds that the principal lacked capacity to understand what he or she was doing, then your real recourse is to file for guardianship of the person in the courthouse of the county in VA where the person lives. That's one reason it's a real problem for you from up here in NY. You have to hire a VA lawyer, and then travel back and forth for court dates and present evidence, etc. It's an uphill and potentially costly procedure. Alternatively, if the principal's money and property is here in NY, how are the new agents in VA going to take control as a practical matter? This is a very difficult and common situation which always ends up a disaster for everyone.

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Answered on 1/21/13, 8:24 pm


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