I hate certain calls, and this was one of them.
The caller lived out of state and was reaching out because her brother had used a Power of Attorney to take all of their mom’s money. No one ever trusted him. He was known for stealing from stores—and bragged that he never got caught.
He convinced their mother to sign a Power of Attorney. Then he took her to the bank and added himself to all her accounts. Even though her doctor had diagnosed her with dementia and written a letter stating she lacked capacity to manage her affairs, the letter provided no protection.
In California, capacity is presumed. A doctor’s letter alone isn’t enough to overcome that presumption. Her son knew exactly how to make her look good when he took her into the bank. She happily told the banker she trusted him. He had just taken her to her favorite restaurant and bought her favorite meal. She didn’t remember how much he loved taking things that didn’t belong to him.
I had to tell the caller there was nothing we could do. The money was gone. When she signed the Power of Attorney, she had legally given him the right to withdraw every dollar.
I share this story as a warning: the only way to prove someone lacks capacity is for a judge to establish a Conservatorship.
I don’t like the expense, stress, and intrusion of Conservatorships. But if your loved one is vulnerable to a family member with a history of exploitation, it may be the only way to protect them.
I always try to help families avoid court whenever possible. But sometimes, the court’s protection is exactly what’s needed.
If you’re worried about someone taking advantage of your loved one, give me a call.
