Legal Question in Wills and Trusts in North Carolina

My father is in frail health. He has named his granddaughter as Power of Attorney, but my mother, sister and I do not trust her. We believe she is abusing her position as POA. Neither do we trust my nephew who is also acting in a legal and financial agent, in cohorts with this granddaughter. She has taken some of my father's property (a pistol, in this case) and given it to him. I do not think my nephew should have anything of my father's. I asked for the pistol back but he never seems to be able to remember to bring it by. What legal rights do I have to change the Power of Attorney over to me or someone else more trustworthy?

Asked on 8/08/11, 6:53 pm

1 Answer from Attorneys

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Where is your father living? Although he is in frail health, is he mentally alert?

Assuming he is in North Carolina and is mentally competent, he could revoke his financial power of attorney and could give someone else power of attorney if he chooses. If he is not mentally competent, then anyone can bring a guardianship proceeding. In the proceeding, the person who brings the action has to prove that your father is mentally incompetent (this is done by getting statements from his doctors) and that someone should be named as guardian over his person and property.

Although I do not know what the power of attorney says, there may be a provision in there which allows the court to name the agent under the power of attorney as guardian. The person seeking to become guardian would thus also have to prove to the court why that person should not be the guardian.

You indicate that you "believe" the granddaughter is abusing the power of attorney. But what proof do you have beside the fact that she gave away the pistol? Was he to get it under your father's will? Could it be that your father decided to give it to your nephew now - for whatever reason he chose?

I don't know all the facts and circumstances and I am not taking sides, but it appears from your post that there is way too much family drama here and that you and the granddaughter and nephew obviously do not get along. I find it odd that your father chose his granddaughter rather than someone more mature like yourself. Was it because of undue influence? Or does your father not trust you?

Its up to your father to dispose of his assets as he wishes, whether in his will or while he is still alive, assuming that this is the product of his decision and free choice. Its not up to you to decide. However, if something is going on and there really is abuse of the power of attorney, then your father needs to immediately revoke it if he is mentally competent or you need to bring a guardianship proceeding if he is not.

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8/08/11, 9:23 pm

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