Power of Attorney - Unique scenario where have it over mother but not father who has been deemed incompetent My wife is power of attorney for health and financial for her mother. My wife's father has a power of attorney document which specifies his wife and two son's as power of attorney for health and financial. My wife's father has been deemed incompetent. Since my wife is power of attorney for her mother, and her father is deemed incompetent what power's does my wife have over her father? The situation is her brother's live too far away to be helpful in making decisions. Thanks,
Your wife has no say at all. This is as it should be. He decided who should have the power to make decisions for him and your wife wasn't someone he trusted to do that. Her competent mother does have the power to make decisions for him and should do so. Your wife shouldn't try to interfere with, or involve herself, in decision making related to him. If her mother at some point in the future ceases to be competent herself and can no longer make decisions for her husband, then that will be a problem for her brothers to deal with and not one for your wife to deal with.
From the legal perspective, the most important step is establishing legal paternity. IN Code 16-37-2-2.1 covers the process of establishing paternity via affidavit, which has to be executed in a prescribed and timely manner and with cooperation by both parties. Paternity can also be established by court action (very complex). With legal paternity established, then in terms of parental rights and responsibilities, it is immaterial that you are not married. If you don't live together, then the question of custody and visitation, and child support, would need to be resolved (with a lawyer involved). This article surveys the situation with Indiana Law w.r.t. unwed fathers (see especially section III), though most of it is about the situation where actual paternity is distinct from legal paternity.
You seem to have put a lot of thought into this - which is good. However, the short answer is: There is no legal solution. To address your points: And legally, my future wife has the right to divorce me even if I did nothing wrong (no-fault). Yes (at least in most jurisdictions). And then, according to the US Census Bureau [1], mothers usually get primary custody (unless she is on drugs or abusive, which she isn't). And according to the Indiana Parenting Guidelines [2], babies only get one night per week with the non-custodial parent. And even as a teenager, only alternating weekends. Here, it depends. What you describe is indeed what happens often, but not always. Rules vary a lot, and change, but there is an increasing trend to have joint custody in case of a divorce. The details vary, but joint custody can extend to joint physical custody or shared parenting, where both parents take turns looking after the child. This is possible in the United States. In practice, in case of separation the parents will have to work out a parenting plan - ideally together, or in court if needs be. What the result is will depend on circumstances, and on the opinion of the court what is in the children's best interest. This may or may not mean joint physical custody. Child support payments are based on custody, so I would need to pay her child support. And since she always planned on her husband financially supporting her, then I would need to pay her alimony too. And because of imputed income, I couldn't afford to take a lower-paying job with more flexibility. Again, this depends. For example, with joint physical custody, there may be only small or no child support payments if both parents care for the children about equal time. And even if child support is due, there may be no alimony payments if the mother can work (even if she chooses not to). Again, a lot depends on the specific case and jurisdiction. Also, while it is not possible to reduce child support in a pre-nup (because theses payments belong to the child), you can (to some extent) limit alimony payments in a pre-nup. Is there any way out of this situation? How can I ensure, starting now before my children are born, that their primary caregiver is me? Here we are leaving legal territory. The short answer is: There is no way to ensure this, certainly not using legal means. The only good approach is to get to know your partner first, and make sure you have similar views on how to approach parenting. If she wants to be a stay-at-home mom, and you want to share both work and parenting (such as in a shared earning/shared parenting marriage) then you need to think (and speak) about how to reconcile these views. You may find that you are just not compatible on that point. Then take appropriate consequences. To put it plainly: In my opinion, if you do not trust your partner to respect your wishes on parenting together, she is probably not the right person for you to have children with.
I am not a lawyer either, though I have been through Pennsylvania a few times. The relevant law is 18 Pa.C.S. 5703, which prohibits recording without consent of all parties (Penna is a "two-party consent" state, like Florida and Washington). Unfortunately, violation of that law is a third degree felony, which has a maximum of 7 year prison. A specific instance of someone getting in trouble for recording their boss is Commonwealth v. Smith (Smith used a cell phone to record his boss, then argued that a cell phone isn't a "device"; the court determined that it is, and that was Feb 16 2016 so who knows the final outcome). An attorney in Pennsylvania might be able to tell you how often people actually serve time for violating the law. You should call one.
The will further states property shall be sold and offspring are to split the proceeds. However, the will does not specifically designate who inherits the property/deed. This is an instruction regarding who inherits the property. It means that the executor of the probate estate (in an official capacity), who takes title by operation of law upon appointment, is directed to sell the property rather than to distributed it in kind. Will there be legal or financial problems with a foreign executor? Not necessarily. Generally, the main issue is that a foreign executor must sign a document expressly submitting to the jurisdiction of the probate court when appointed in addition to other documents that are signed by all executors. Pre-death, in the will, would it be better to designate the American resident offspring as executor? Not necessarily. Hands on administration of the estate and dealing face to face with a local probate lawyer is easier for a resident of the state where the assets are located and the decedent resides, but in these days of telecommunications this isn't a decisive factor. The relative competencies of the prospective executors is more important. If both offspring agreed, can the overseas offspring easily transfer executorship to the American offspring, or will there be legal or financial consequences? Assuming that they are the only interested parties in the estate, they can do so. You can't be compelled to serve as an executor just because you are nominated by a will to do so. If one person declines to serve, the person with next highest priority which would likely be the other sibling, may apply to the probate court to be appointed. The main financial consequence is that typically, whoever does the job is entitled to reasonable compensation from the estate for their services. Would there be legal or financial deed ownership issues, since neither offspring specifically inherited the property? No. Could a court order the property to be auctioned out from under the offspring? If all interested parties agree, they can defy the will. The normal process, however, is for the executor to follow the will and to sell the property in a commercially reasonable manner, typically by engaging a real estate agent to handle the sale. If the executor fails to take action, and an interested party objects, it would be more common for a probate court to remove the executor and appoint another one, than to order a sale at auction, which would typically be a course of last resort. This said, under appropriate circumstances, the court of probate jurisdiction would have authority to order an auction of the house. Most commonly, a court order to sell a decedent's house at auction would arise when the decedent (i.e. the dead guy) only owned an undivided partial interest in the house (called a tenancy in common interest) and the non-deceased third party co-owner of the house (perhaps a brother or ex-wife of the decedent) declined to cooperate in selling it. If a court determines the overseas executor offspring receives the property deed, the overseas executor wants to remain executor but give deed to American offspring for easier selling of the property, would the property have to go through titling and closing costs for the transfer, and then again for property sale to a third party? This question reflects a fundamental misunderstanding about how probate works. Title to the property vests in the estate by operation of law upon the death of the decedent. The executor has authority, once appointed, to take actions such as signing a deed to a third-party buyer, on behalf of the estate. There is no intermediate closing and transfer of title to vest title to the property of the decedent in the name of the estate before it goes from the estate to the third party. The net proceeds of the sale to the third party (after costs of sale and prorations of things like property taxes and prepaid insurance) are then placed in a bank account for the estate and paid to the heirs after expenses of administration are paid. There is nothing that makes it significantly harder for an overseas executor to close than a domestic one. The title company handling the sale emails the deed (and any other paperwork that needs to be signed) to the executor. The executor prints the documents to be signed, signs the non-notarized documents, and signs the deed in the presence of his friendly neighborhood notary in the foreign country where the executor lives, who notarizes the deed. The executed deed, together with a document called an apostille proving that the notary is really a notary, is sent back to the title company (probably with a scanned copy by email and a hard paper copy following by express delivery). Coordinating time zones may be a pain depending on the location of the particular foreign country in question (but the closing does not have to happen for all parties at exact the same time), and if the overseas executor is someplace primitive and remote with no internet access or computers or printers or faxes and no notaries, that could be a problem. But there are increasingly few places like that in the world.
What factors might a court consider in these circumstances? Is it true that anyone can just walk up and file a document in any case, with no requirement to identify themselves? If nobody admits to filing a document, it is likely that the court would grant a motion to strike the document and disregard it (revising a past ruling if the issue was raised within the six months allowed for reconsidering rulings under Federal Rule of Civil Procedure 60(b) or the state equivalent). A court document must, on its face, indicate a filing person and be signed to be accepted by the clerk of the court pursuant to Federal Rule of Civil Procedure 11 or the state equivalent. But, if the document appears on its face to be legitimate, the person filing it will not generally be required to prove their identity. This happens even less often now than it used to (in the past, fake filings were often made by members of "sovereign citizens" movements to harass governmental officials), because in both the state courts were I practice and in federal court, documents must usually be filed with the court by lawyers via e-filing using a password protected e-filing account. Usually, only parties without lawyers and out of state lawyers who are still in the process of setting up their e-filing account file court documents in person. When documents are filed in person, they are also often delivered via courier rather than by the person who actually signed the documents. And, as a matter of practical reality, third-parties almost never file fake documents in court (in part, because there is usually someone present who is in a position to call attention to the fraud to the court). Still, this can happen, although it is very rare. I've only seen a situation like this come up once in twenty years of practice. (My account below oversimplifies some of the technical details of what happened to get to the gist of the points relevant to this question.) In that case, a lawyer was representing an ex-husband in a post-decree alimony modification case that had been appealed filed a bill of costs that she sought to recover on behalf of her client for the appeal, but she filed it in the wrong court (she filed it in the appellate court where she had represented her client, rather than, as required, in the trial court where another attorney had represented the ex-husband). When an order awarding him costs was not entered by any court, the ex-husband filed an (untimely) bill of costs in the trial court under his appellate lawyer's name using the appellate filing as a model, without her consent, by forging her name on the document. The lawyer didn't discover this (because she was retained only in the appeal and had never entered an appearance in the trial court and thus didn't have access to the trial court file, and because the court doesn't automatically send you a copy of your own filings) until I responded on behalf of the ex-wife to the forged bill of costs alleging that it was untimely which I served a copy of upon the ex-husband's lawyer as required by the rules. At that point, the ex-husband's lawyer immediately called me and the court to explain that she did not file this document and that it was forged (otherwise should could have been sanctioned for knowingly filing the bill of costs knowing that it was out of time and was frivolous at that point and could have been deemed to be responsible for further trial court proceedings of the ex-husband in the case, like keeping him appraised of deadlines, court rulings and filings by other lawyers in the case, since it appeared that she'd participated in the trial court case). Ultimately, the court declined to award the costs because they were filed in an untimely manner and because they were not really filed by the lawyer as claimed. So, the the court disregarded the bill of costs and denied this relief to the ex-husband. (If I was the judge, I would have hauled the ex-husband into court and held him in contempt of court sua sponte, but in this very busy court where hearings in divorcees are often scheduled two or more years out from the scheduling date, the judge didn't have the time to devote to issues like that.)
Florida bar membership is something that can be determined from public records to see if he is an attorney or not. I would be stunned if he was not. It could be that he was an enrolled patent agent prior to being admitted to the practice of law and has never updated the record. Alternatively, it could simply be that there was a data entry error. No large database is 100% accurate. For most purposes, the rights of an enrolled patent agent and an attorney admitted to patent law practice are the same in PTO practice, so correcting this error (assuming that it is one), even if it was discovered, wouldn't be an urgent priority.
In the US, when a person has unpaid debts and dies, those debts are to be paid from any assets of the estate (as in, any assets). The executor has the responsibility to use those assets to pay the debts. Presumably the executor did that, and there are no co-signed accounts or anything like that, so your mother isn't responsible for these debts in some obscure way. The Fair Debt Collection Practices Act has a provision that you can tell a collection agency to stop communicating with you, and they must then stop communicating with you except to say they are stopping attempts to collect, to indicate possible remedies (i.e. lawsuits), or notify of an actual remedy (they have actually filed suit). Since they are no longer allowed to discuss anything with you once you give them the go-away notice, one should probably hire an attorney to exercise the nuclear option. You can also request proof that you owe the money: they are suppose to notify you of the right to dispute the debt with 5 days of first contact, which gives you 30 days to dispute the debt. Persuading a debt collector that they are pursuing the wrong person is probably easier than persuading a jury in a lawsuit.