you are going to have the burden of proving that your dad lacked capacity to make the 2005 transfer. the 2006 declaration does NOT prove your case. you will need to bring in witnesses (doctors are best) to testify as to his state of mind ON THE SPECIFIC DAY he signed. This will not be easy. Hopefully, you will have other facts to support your case.
as for the guardianship, you can get involved if you want. several approaches: (a) file objection to having Gship established. if his properties is held in trust, for example, there should be no need for the Gship. (b) file objection to your sister serving, based on 2005 self-serving asset transfers, conflict of interest, alleged elder abuse, etc. the court will not like what your sister did. (c) file motion asking to have yourself appointed.
If the facts make your sister look dirty, consider filing elder abuse charges. these work 2 ways. there are criminal charges you can throw at her, and there are civil ones too.
Posted by Patricia on November 03, 2006 at 05:37:25:
My dad is now legally declared incompetent. Although he suffered from dementia in 2005, he was not declared incompetant and he was capable of signing for himself, My sister took him to an attorney and had him take out a mortgage in the amount of 450,000.00 and tranfered the house in her name to protect her from creditors. My dad defiately was not of clear mind and now he can not sign it back and she is suiing for guardianship because of her financial interests. Is taking a man with dementia and to her attorney to completes such a transaction a possible fraudelent act? Can we do something about this and stop her guardianship?
Re: transfer with dementia - Posted by John Merchant
Posted by John Merchant on November 03, 2006 at 17:38:39:
IF he was in fact NCM (non compos mentis, or incompetent mentally)when the doc was signed, it’s invalid and worthless and legally unenforceable.
But now it would be a rather difficult matter to prove his incompetency, with a lawyer, a notary public and your sister all testifying that he WAS competent and rational.
If you brought a suit to invalidate the mtg, the legal burden would be on you to prove your case, and that might prove to be a heavy burden with your sister, her lawyer and the notary all testifying he WAS OK then and knew what he was doing.
Patricia - Sadly, I see many similar cases as I deal with quite a few conservatorship and other elderlaw cases (I’m a lender that deals with probate and conservator matters, not an attorney).
Making a claim such as yours sounds simple enough, but will likely be a big undertaking to try to unwind. Cases claiming elder abuse like your would be are typically expensive, long and hard on the family. You (or rather your attorney) would have to prove that Dad did not have sufficient capacity to understand what he was doing when he signed for the loan. Also, seniors can sometimes appear more lucid than at othertimes and this can further cloud proof.
As to the loan proceeds, make us clear as to what the money was for and where did it go. Refinance a prior loan or other creditors? Did you Sister establish a bank account to marshal the funds? Or did the money get “spent” sometime after Dad signed for the loan and before she was appointed guardian (?) of your Father’s estate?
Was this a reverse mortgage or a regular mortgage? Home equity line-of-credit where the borrower can take out money like a credit card or a standard fixed rate conventional 30 year loan? I wouldn’t be surprised if you don’t know these answers but they’re definately important facts.
Lastly, if you do go the lawsuit route, be prepared to have a significant amount of money to fund this fight and comfortable with having it out for an extended period of time, perhaps years.
Wish that I could be more positive but figure that you don’t deserve to have this sugar coated.
the house was titled in dad’s name. right? and he took out a 450K mortgage, where he was the borrower, right?
what happened to the 450K in loan proceeds?
he then transferred title to the house to sister? has lender been notified of this transfer?
was the attorney who prepared the transfer documents your dad’s attorney? or your sister’s attorney? or a new attorney who had not represented eiher of them before? see if you can get a copy of the engagement letter. find out exactly who his client was.
5, you say the transfer was made to “protect from her creditors.” what does this mean?