Power of Attorney

My sister’s are saying they are my Mother’s Power of Attorney Mom is in a Nursing home, she had a stroke and has dementia, I have asked to see the document and my sister will not show me the document. I was advise to check with the County Clerk here in Rochester NY and no such document has been filed. My sister works at the court house and has already tried passing of a document forbidding me to see my Mother, the document was dismissed because it was not notarized nor did it have a raised seal and they had my Mother sign it and she is not competent. Does a Power of Attorney have to be filed? Could they have just created a Living will in their own wording and then have my Mother sign it and could that be legal? I am not sure what I can do legally, my younger sister changed Mom’s checking account into her name and mom’s joint Account which it was in mine and Mom’s name approx. on June 26,2017, in my opinion my mom is being manipulated, and my other sister had been astranged from my Mom for 38 years, until recently. As I said I am not sure what I can do if anything. Thank you, in advance

Asked on August 30, 2017 under Estate Planning, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

No, a power of attorney does not have to be filed to be effective. And IF your mother was competent when she signed a living will (or POA, or will) it is valid, even if your sisters drafted it for her--nothing says a person has to draft her own POA or other document, but can instead elect to sign one prepared by another. As long as a mentally competent person signed it  of her own free will, it is valid.
If you believe that your mother is being taken advantage of and that she is mentally incompetent, you can bring a legal action to have her officially declared incompetent and have a legal guardian appointed for her. (Note: you will need medical evidence of incompetence.) In that action, you can present evidence or testimony that your sisters have been taking advantage of her to try to show they would not be fit guardians, and you can propose yourself as guardian. If your mother is declared incompetent and a guardian appointed for her, that guardian would have the power to invalidate any POAs she created; also living wills or wills can be voided if some irregularity (e.g. fraud, coercion/duress) or lack of capacity (e.g. that your mother was incompetent when the document was created) in their creation can be shown. If you wish to consider this option, consult with an elder law attorney.

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