QUESTION
Can my husband’s aunt with a power of attorney evict my husband and sell the house?
Asked on Mar 06th, 2014 on Estate Planning - California
More details to this question:
My husband is the only child and his mother’s house in will goes to him. My husband’s mother is at home with alzheimer's. My husband’s aunt has power of attorney and making him get out of the house and sell it. Can my husband stop this?
14 ANSWERS
2 Awards
Probably if he gets an attorney, the will says what he thinks it says, and he gets an injunction. You better move fast.
Answered on Mar 10th, 2014 at 4:45 AM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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If your husband's mother is no longer able to live in her home, her assets will have to be used to support her in her new living arrangements. If her other assets are insufficient then her house will have to be sold. If she is not living in the home she would not qualify for Medicaid while owning the home, unless your husband is dependent upon her. An adult dependent is allowed to live in the home of someone otherwise qualified for Medicaid. But even in that case, Medicaid would place a lien on the home. As the holder of a Power of Attorney for Property the aunt was granted authority to act on behalf of the principal and deal with her assets. This would include the sale of the house. The house would not be your husband's until his mother's death. If your husband is the sole heir and legatee under the will he will receive whatever assets are not used to support his mother at the end of life. If the aunt is a cash legatee under the will then there may be an issue regarding her actions being consistent with the preferences of the mother. The mother clearly wanted her son to live in the home and the cash assets should be used up before the house is sold.
Answered on Mar 07th, 2014 at 9:57 AM
It depends on the terms of the power of attorney document and why the aunt wants to sell the house. Your husband only has a future interest in the property (the terms of the will) but no claim on it right now. Under the right conditions, the house can be sold and the proceeds used to pay for your mother-in-law's expenses.
Answered on Mar 07th, 2014 at 8:52 AM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Your husband needs to file a petition for conservator-ship of his mother and at the same time obtain an order terminating the power of attorney. Suggest you seek the services of a probate attorney who specializes in conservator-ship proceedings. With the conservator-ship, your husband being the conservator of the assets also could sell the house to help pay for his mother's care if needed as the asset is for her care, so as to not burden the taxpayer for her eventual board and care in a licensed facility. Tell the aunt to stuff it, as she cannot sell it.
Answered on Mar 06th, 2014 at 10:55 PM
Criminal Defense Attorney serving Alhambra, CA
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Francis John Cowhig
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Your question requires an attorney consultation. It is not a simple question that can be answered on this type of forum. There are many factors that would need to be considered and evaluated. What are the restrictions, if any, on the power of attorney? Why is the house being sold? Who is the beneficiary of the power of attorney? Your husband or his mother? Why was the power of attorney granted? Is your husband's mother still living? I strongly suggest that you contact an experienced estate planning or probate attorney for a face-to-face consultation and give him/her all of the facts surrounding your situation. (S)he would then be in a better position to analyze your case and advise you of your options.
Answered on Mar 06th, 2014 at 10:27 PM
Edwin K. Niles
An agent under a power of attorney has a duty to act in the best interests of the grantor of the power. Is a sale in Mom's best interest? Or is the sale necessary to pay for Mom's expenses? Your interests are secondary to Mom's. We suggest that you have a conference with a lawyer who does this sort of work.
Answered on Mar 06th, 2014 at 9:12 PM
Thomas Edward Gates
You need to look at what powers were given in the Power of Attorney. It must state that she can buy and sale real property. If it does, she could do so. Your husband can challenge the sale as not in his mothers best interest or that she is doing so to get back at your husband. Of particular concern is what she does with the money.
Answered on Mar 06th, 2014 at 9:05 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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If mother's house must be sold in order to pay for mother's care, then that's what has to happen. If mother has other assets to pay for her care, then it wouldn't be unreasonable to expect other assets to be spent first, unless there are other devisees in the will who would be hurt by this.
Answered on Mar 06th, 2014 at 6:33 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Probably not if the money from the house is necessary for your mother's care. If he wants to try and has the money to do this, he can file to be named mother's guardian and conservator. He should use a local attorney to do this. Of course, if it turns out that the house has to be sold to take care of mom, he will still have to do it. However, it may be that sis is just being mean. As I said, talk the details over with a local attorney.
Answered on Mar 06th, 2014 at 6:27 PM
Litigation Attorney serving Bakersfield, CA
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Dessy & Dessy
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I think the court would be very receptive to your position, that you are caring for the owner of the home and are the named beneficiary in the will, such that an eviction would be in proper under ordinary circumstances. Whether the circumstances are ordinary, begs the question of why you we're not given the power of attorney for your mother. I would imagine that a court would place an equal emphasis on the question of why your aunt wanted to evict you.
Answered on Mar 06th, 2014 at 6:26 PM
3 Awards
Hard to say. If she needs the assets now, then probably not. Your husband should meet with an elder law or estate attorney to address the status. Much more information is needed. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship. This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.
Answered on Mar 06th, 2014 at 6:26 PM
If the aunt has a valid POA then she probably does have the right to do this. The will does not apply until the mother is dead.
Answered on Mar 06th, 2014 at 6:25 PM
Unless the agent in the Power of Attorney is abusing her power or discretion, or acting contrary to the wishes of the principal, then probably not.
Answered on Mar 06th, 2014 at 6:25 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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The answer is possibly yes. The Will concerns only assets that are part of the probate estate after the mother dies. If the money needs to be used to care for her during her lifetime, then the assets can be sold. The POA would need to be reviewed to be sure, but in most cases, this would be something that the aunt could do, provided it is in the principal's best interest to do so. One caveat; if the aunt is joint on some of the assets and uses exclusively the assets which she would not be entitled to upon your mother-in-law's death, then this could be construed as self-dealing and a breach of fiduciary duties. It is possible, in other words, that the aunt may have a conflict of interest in acting under the POA. You should review the entire situation and all relevant documents with a probate attorney, to determine how best to proceed.
Answered on Mar 06th, 2014 at 6:25 PM