is it legal for my husband that has brain damage to have his persistent mother handle his finances.

UPDATED: Sep 30, 2022

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is it legal for my husband that has brain damage to have his persistent mother handle his finances.

My husband and I are married and have two children. My husbands dad
just passed away this Nov. and willed half his house to his wife’s
adult children and the other half to my husband. The home is
currently on the market sale pending for 849,00. More information on
my husbands dad that passed his wife passed in 2014. My husbands
mother very persistent in finding a superior relationship with my
husband has my husband allowing him to let her handle the sale and
all of the money. I now financially know nothing as to what my
husband plans to do. My husband went into the hospital two years ago
for fluid on the brain, he now has major brain damage, his derision
making is very poor and never in the best interest of his wife me
and children. I do not agree with in trusting my husbands mother
with any financial or anything. I do realize my husband can have an
inheritance to himself only if that is what he chooses, but I
certainly don’t want his mother to have any sorts of power of
attorney since we are married and my husband is vulnerable to not
making safe financial decisions. Is this legal what can I do to
safeguard my family.

Asked on December 4, 2016 under Estate Planning, Washington


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

1) While brain damaged, if your husband is still legally considered mentally competent--that is, he has not been declared incompetent to manage his own affairs, etc.--then he has the right to have his mother manage his affairs for him, the same way a competent adult could have a spouse, or a sibling, or a friend, etc. do this for him. Unless she has a power of attorney from him granting her authority, she can't sign documents on his behalf or otherwise act without him, but he can certainly defer to her and let her make all decisions.
2) If he is mentally incompetent and had created a power of attorney before becoming incompetent, then whomever was given the power by that POA (was made his "agent" or "attorney-in-fact") can make these decisions for him.
3) If he has been determined to be mentally incompetent and does not have a POA, then you should file a legal action in chancery court (a division or part of county court) have yourself, as spouse, appointed legal guardian, so that you will have the authority to make these decision, manage his affairs, etc.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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