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MGSACS

P.O.D.

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My father was befriended by a guy at McDonald's who was for a short time able to gain my father (who had alzheimer's/early onset of dementia) POA and make himself executor of my father's will.  We got him removed, but not after significant financial damage was done.  Question, after my father's wife passed this guy became POA for my father.  He took my father's wife's will and dispersed money to her family.  One provision in the will was that any joint accounts go to my father on her passing.  If my father passed first then any money would go to her children when she passed or a POD to them.  Now that my father has passed, the other family is coming in and saying that that is their money since it had a POD to them, even though it should have been transferred to my father's account as soon as my father's wife passed.  Remember this was a joint account.  It appears that this former POA has been working with the other family.   was able to get a professional guardian appointed, who only discovered my father's deceased wife's will recently.  I am told if i lose in court i have an action against the former POA?  Do o lose in probate?  This has been an ongoing nightmare for the past two years.  I am smart enough to know that i don;t know anything about this, not even the questions to ask.  The money is supposed to go to my children for their education.  Any advice.  I have an attorney, which is costing an arm and a leg every time i call him to ask questions.  We are in a community property state.

 

 

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Since you have not identified the state where this occurred meaningful comment is difficult.  Estate law is uniquely governed by state law.  However, I question why you would seek the opinion of anonymous individuals on the internet rather than relying on your attorney.  Also, no one here has ever seen the wills or power of attorney in question.

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Your attorney is in the best position to answer these questions.  You may be paying him an arm and a leg, but an online community can only speculate about your circumstances.  You should also inquire about getting a guardian and/or conservator appointed for your father, who may no longer be able to handle his own affairs.

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1 minute ago, rockmehardplace said:

You should also inquire about getting a guardian and/or conservator appointed for your father, who may no longer be able to handle his own affairs.

Since the poster indicated his father had "passed", this might be difficult.

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We are in Washington State.  My father passed away this past July.  The guardian is only now finishing her report and presenting it to the court.  The attorney is great and i do ask him questions, but since i have never gone through this, i don't even know some of the questions to ask.  I have to believe i am not the first one to go through this.  I thought oi may get some insight by others?

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perhaps if i asked the question this way?

 

A Hypothetical.  A person  lives in WA State and as in their second marriage.  The wife's will states that if the wife passes first any funds from joint bank accounts go to the husband on her death.   If the husband passes first and then wife, then  any funds from those joint accounts go to the wife's kids from her first marriage.  

 

The wife passes first.  The husband has Alzheimer's and is befriended by someone at McDonalds.  The husband gives this person his POA.  The  POA sits on this account and does nothing with it and tells nobody about this will.  He is removed by the court.   It is still a joint account, but does have the wife's children on it as POD to them.  The husband then passes with the money still sitting in an account that does have the wife's children as POD, even though the money was never transferred to the husband, as stipulated by the wife's will.  Now both families claim the monies.

 

Any thoughts on a situation like this?  I have been told that if i lose in court, i can take action against the former POA. for negligence.  As an aside, when my father passed the former POA was with the other family when they called the guardian asking about the money.  

 

 

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Funds that are in bank accounts that are joint accounts or that have provisions such as P.O.D., pass according to the provisions of the bank's contract with the owners of the account.  Upon the death of a joint owner, the balance in the account goes automatically to the remaining joint tenant.  It does not pass through probate and cannot be affected by the provisions of a will. So, when the wife died, the funds automatically became the property of the husband.  Unless the husband changed any existing P.O.D. provisions, the funds then passed to those designated as beneficiaries of the P.O.D. designation.  None of this can be changed by the wills of the joint owners.  

 

If your proposed suit against the former agent acting under the power of attorney is based on a claim that he was required to somehow change the designations of beneficiaries of the bank account, I believe it will fail.  In fact, the account did pass to the husband upon the death of the wife.  It did so because he was the surviving joint tenant, not because of anything in the wife's will.  Since the account was not subject to the terms of the wife's will the attorney in fact was not required to change the beneficiaries as proposed in the wife's will.

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Many posters sometimes make the mistake of automatically assuming that people in similar situations to theirs will be reading or responding to this message board, but that ralmost never happens,  since most of the readers are lawyers.

 

So many facts/factors that are unknown by the readers make it difficult to fully evaluate your situation.

 

(1) Is it your father's probate that is currently open and is it his probate for which you are waiting for the report from the guardian?

 

 

(2) Was the lady your father was married to--was this his second wife?  Does the "other family" consist only of the wife's children (who are NOT children of your father)?

 

(3) What year did the wife die?

 

(4) Was the wife's will ever officially probated in probate court and was the POA the executor/administrator of the estate?

 

(5) Was there an official diagnosis BY A DOCTOR of Alzheimer's or early onset dementia for your father?

 

(6) Was the POA granted to the "befriending guy" anytime after the diagnosis had been done?  If so, then the POA was fraudulent and he can be sued for damages, whether it is for negligence, breach of fiduciary duty, and/or abuse of power of attorney.

 

(7) What kind of "financial damage" did he do?  If he used your father' s money to pay the father's bills and living expenses, then that is okay, but any other monies he paid out will need to be scrutizined by looking at the bank statements to see if there were unauthorized expenditures.

 

 

(8) You did not state who the designated beneficiaries  (don't name specific names but were they the wife's children or your father's children) were on the POD and did this POD come from your father's estate or from the wife's estate?

 

It's hard to understand why the bank would release the money to anyone other than the designated beneficiaries or joint account owners, but if the POA dispersed these monies incorrectly, then he certainly needs to be held accountable.  The problem is that the instructions in the will about how the wife wanted the money distributed can not take priority over (and do not have any effect on) the designations on the POD account, but she most likely did not  know that at the time she created her will.  It's difficult to know whether the POA's decision to distribute the money to other parties was done innocently (in ignorance of the law, which is not an excuse) or intentionally and you did not mention whether he asked for this money to be distributed as part of a probate process or whether it was done with no probate court involvement or review (did he simply tell the bank who to pay?).

 

Perhaps things will be clearer after the guardian has released the report and you and your attorney review it.

 

(9) Look at the wife's will and see if it requires that an executor's bond be purchased or whether there is an exemption of that requirement.

 

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Thank you for responding.  The other side is arguing that the funds were never removed from the account and transferred to my father and there is a POD to them on the account they are entitled to the money.  The funds were never transferred to my father, because the POA, who again was removed never told anyone that it was a joint account and there was a a POD to my father's estate.  I guess the first POD and transfer was supposed to be to my father.  The POA never did that and now that my father is gone, the other side says, well there is a POD to us and we should get the money, even though the former POA did not follow the will.  Actually he followed 1/2 the will and transferred other funds to the other family.

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The only thing I can really offer in response to your original post is that, absent some extremely unusual provision in the account agreement, money in a joint bank account passes to the survivor when one of the account owners dies, and that money is not part of the deceased owner's estate and, therefore, not subject to the provisions in his/her will.

 

 

2 hours ago, MGSACS said:

A Hypothetical.  A person  lives in WA State and as in their second marriage.  The wife's will states that if the wife passes first any funds from joint bank accounts go to the husband on her death.   If the husband passes first and then wife, then  any funds from those joint accounts go to the wife's kids from her first marriage.  

 

The wife passes first.  The husband has Alzheimer's and is befriended by someone at McDonalds.  The husband gives this person his POA.  The  POA sits on this account and does nothing with it and tells nobody about this will.  He is removed by the court.   It is still a joint account, but does have the wife's children on it as POD to them.  The husband then passes with the money still sitting in an account that does have the wife's children as POD, even though the money was never transferred to the husband, as stipulated by the wife's will.  Now both families claim the monies.

 

I don't understand the statement, "He is removed by the court," but under the circumstances you described, the persons identified as the pay-on-death beneficiaries are entitled to the money, and neither the husband's will nor the wife's will is relevant.  As mentioned above, in the absent of some unusual provision in the account agreement, the money goes to the surviving husband when the wife dies.  When the husband dies, the money goes to the designated beneficiaries.

 

 

2 hours ago, MGSACS said:

I have been told that if i lose in court, i can take action against the former POA. for negligence. 

 

Told by whom?  Nothing in your post suggests that the "guy at McDonald's" was in any way negligence or that he had or breached any duty to you.

 

By the way, when the wife died, the joint account ceased to be a joint account and was, for all intents and purposes, an account owned solely by your father (even though both names may have remained on the account following the wife's death).

 

P.S., a "POA" is a document.  The "guy at McDonald's" was not "the POA."  He was (apparently) your father's agent pursuant to the terms of a POA.

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Knort:  Here is what i know thus far.

 

1.  My father's probate has not begun.  The guardian will be giving their final report in a few days.  The report says they may have made a mistake, when they found out about the will and possibly should have transferred the money over to my father's accounts, but are unable to do anything now that my father has passed.

 

2.  Yes, second wife.  Children are hers and not related to me.

 

3. She passed 2 years ago.  Was fighting to get the POA removed and off the will for almost a year.  This last year moved my father closer into a facility where we could visit.  He passed a few months ago and have been waiting on the guardian.

 

4.  Got documents yesterday.  Wife's will was probated in court, but by her kids.  The POA was able to transfer moneys and have her family quick claim the house for $10 using the POA.  A number of years ago my father did give her his interest in the house, from my understanding.

 

5.  Yes, diagnosis of alzheimer's / early onset of dementia 6 months prior to all of this.  However, when i went to adult protective services, they said, well he could have been fine when he turned things over and signed contracts.  The POA had him sign a contract paying himself and his wife also.

 

6.  Yes, POA was granted after diagnosis, but again all i am ever told was well he could have been totally fine when he signed documents.

 

7.  In 3 or 4 months he was able to pay himself around $30k or so, as far as we can tell.  He and his wife would take my father out to dinner and bill him for everything, food, gas etc.  They also, were going to have a garage sale on my father's behalf and emptied out 1/2 of his home, until i was able to get a court to compel him to return the items.  Not all were returned, but i can't prove it.

 

8.  It was my father's wife.  Also, the former POA put his name on every account and simply paid the other family acting as my father's representative with the POA.  

 

Also ,Supposedly there were accounts for my kids education set up by my father and wife, but nobody knows anything about these.  The former POA did set up two accounts to make sure the kids had monies for college.  That is what he told us.  We found out they were for $300 each.  And i think he has even taken that.  However i am having the bank look into it.

 

9.  No bond is necessary.  My father was supposed to handle the will, but as soon as the POA got involved everything changed.  He even attempted to become the guardian of my father, that is why there is a professional.  

 

What i know.  We had been living out of state when this began and my father was befriended.  As soon as the wife died he attempted to keep us from my father.  Our initial information was hearing that my father's wife passed and calling the funeral home.  We were told by the home that they could not speak to us because they were told by the POA not to tell us anything.  In the beginning every time we saw my father, the POA was there and was answering questions for him.  Finally we began to  think... this isn't right.  

 

 

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Thank you all for input.

 

PG1067.  a friend of mine who is an attorney suggested that if the court rules against me i have an action against the person who had the POA for not transferring the monies from the joint account to my father's account as stipulated by the will while he had the POA.

 

I am not an attorney, that is why i am asking questions.  Please read my response to Knort.

 

Everyone thank you again for any insights.

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8 hours ago, RetiredinVA said:

 

8 hours ago, rockmehardplace said:

You should also inquire about getting a guardian and/or conservator appointed for your father, who may no longer be able to handle his own affairs.

Since the poster indicated his father had "passed", this might be difficult.

 

Thank you for pointing this out. 

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You were given bad advice that was extremely misleading, when you were told that "he could have been fine when he turned things over and signed contracts".  They should have advised you to consult with an attorney who specializes in elder financial abuse/abuse of power of attorney/breach of fiduciary duty cases.  Since your father was definitively diagnosed, he is considered legally to NOT have the mental competence to understand business transactions or much of anything else, and the contract can be invalidated.  The POA was used abusively and after you and your attorney file charges and win your case, he will have to make restitution on most of the actions he committed while using the POA--most of what he did was improper and illegal--quit claiming the house for such a small amount, the contract paying himself and his wife, any accounts he put his name on.

 

The bad news is that you will NOT be able to recover the monies from the POD.  It is a basic principle of business law in every state that beneficiary designations must be carried out as indicated, and what anyone's will says can not change a beneficiary designation.  If the wife wanted those funds transferred, she should have indicated that on a beneficiary designation form that she was asked to fill out by the bank.

 

At least this crook will not get away with everything he did, and you will at least have a basis for attempting to get a partial recovery of some of the assets from this estate.

 

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If i am unable to recover the monies from the POD, would it then be actionable against the former POA who did not transfer the funds to my father's estate?  He and the family were the only ones who knew about this in the will.  I honestly believe he is working with the other family.  

 

Question on the beneficiary designation.  It also says POD to my father who has now passed.  I am representing his estate,  cannot that argument be made?

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Please!  I will say this one last time.  When his wife died, the funds in the bank account became your father's sole possession because the account was a joint account.  There was no need for the attorney in fact to transfer the funds.  They were already in your father's account.

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Your reasoning is correct in that the monies did belong to your father, and the funds to belong to your father's estate, as far as we know, but we don't know exactly what the "POA" did to pay out this money so someone will have to examine exactly what he did with the money to determine where it should now have gone.  Please get the concept of "transferring funds" out of your mind, because that instruction/provision  in the will was/is never going to happen and never should have happened.  It is beneficiary designation law that determines where the money goes. Has your attorney even looked at this aspect of the case?  What does he say about the POD?

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Thank you all, this is why I ask questions.  I believe my attorney has looked at this aspect.  His first response was that a POD designation takes precedence over a will and didn't think there was much of an argument.  The official guardian then explained to him that it was a "joint" account and they may have error-ed by not taking the POD off and transferring it over to my father's estate.  That they only learned of it at my father's death death.  The former POA (the befriender) should have transferred it, but he seemed to do things that only benefited himself or the other family.  Again, when my father passed the former POA was with the other family asking about the money and saying that there was a POD on the account that went to them.

 

The funds right now are sitting in a blocked account with my father's wife on the account (deceased), my father (deceased), (the former POA, who befriended my father who added his name to the account has been removed) and my father's wife's kids (alive)with a POA to them.

 

The POA paid out other funds, $300k and quit claimed the house for $10 to the other family...  those are totally different.  I only brought them up to make a point that it seems things are a bit shady

 

 

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Also her will stated that if she passed first, these funds would go to my father with a POD.  Now that he has passed, there is a POD to her kids on this account.  Again, how can she even do this with a joint account.  Basically there is this account just sitting out there blocked for now.

 

Sorry if i keep reiterating or babbling... but there were always supposed to be funds to help with my kids college.

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1 hour ago, MGSACS said:

Again, how can she even do this with a joint account

 

Why do you think she  did it?  It is far more likely both you father and his wife did it together.  In your opening post you said:

 

On 12/6/2018 at 2:36 PM, MGSACS said:

One provision in the will was that any joint accounts go to my father on her passing.  If my father passed first then any money would go to her children when she passed or a POD to them.

 

So it sounds like the couple assumed your father would die first and they set up the pay-on-death designation on that assumption.  Of course that is not what happened.  Your father could have changed the pay-on-death provision after his wife's death, but he obviously didn't.

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You are likely correct. I should not have said..."she"... rather how can this be done with a joint account.  My family and i were out of state for a number of years and were unaware of many things.  I now find out the initial Alzheimer's diagnosis was a couple years, not six months before this happened.  No, my father never changed anything, as soon as she had passed from my understanding is when he turned over his POA to the guy from McDonalds and the guy from McDonalds had him re-write his will putting himself (McDonalds guy) in charge of everything and on every account my father had.

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