QUESTION
Can my brother sell a property without letting me know even if I’m the one who has the power of attorney?
Asked on Dec 10th, 2013 on Estate Planning - Colorado
More details to this question:
I have the power of attorney for both of my parents. I also have a brother who is trying to have my mother, who has dementia, to sign a legal document to sell some of her property. Can this happen without my knowledge?
16 ANSWERS
You need to file a copy of the power of attorney with the local department handling the filing of documents affecting real property [normally county clerk] so that any potential buyer will know that the sale is questionable. You should also get her Dr. to verify that she suffers from dementia so does not have the power to sell her property. Tell your brother once you are successful in doing thee things that he is not allowed to get her to sell anything.
Answered on Dec 19th, 2013 at 6:41 AM
Edwin K. Niles
Yup. You should consider a conservatorship proceeding.
Answered on Dec 12th, 2013 at 7:56 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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Yes it can. As long as your mother still has capacity, she can either revoke your POA or give someone else POA to handle her affairs. Your having POA may allow you to act. It does not prevent your mother from continuing to do so. If your mother does not have capacity, then any resulting documents would be voidable.
Answered on Dec 12th, 2013 at 7:56 PM
Business Law Attorney serving Bingham Farms, MI
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James T. Weiner, P.C.
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It can happen without your knowledge if you only have a power of attorney. and your mom signs. She is under no legal disability until she has been adjudged incapacitated. If you are concerned you need to file a guardianship action and have yourself appointed as guardian.. (you should have priority as attorney in fact pursuant to the POA) that does 2 things .. it gives you control and it eliminates the right of your mom and dad to do things like sell the property with only their signature.
Answered on Dec 12th, 2013 at 7:56 PM
2 Awards
CAN it happen, yes. Should it happen, no.
Answered on Dec 12th, 2013 at 7:55 PM
Thomas Edward Gates
While, it can happen, you have a means to get it overturned.
Answered on Dec 12th, 2013 at 7:55 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Suggest you obtain the services of a probate litigation lawyer to advise your brother to stop his actions as you hold the POA as to your mom's financial transactions, and to advise him to not be bothering your mother who has dementia, as she does not have the mental capacity to know what she is doing. You may want to inquire of the lawyer about obtaining a conservatorship on your mother as to her person and estate, and have you appointed as her conservator.
Answered on Dec 12th, 2013 at 7:55 PM
You have knowledge of it, so you should be able to stop it. Do you know who is trying to buy the property? You could inform them that she is not capable of signing the document. Good luck.
Answered on Dec 12th, 2013 at 7:54 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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The owner of property can sell property. If your mother owns property, and signs a deed, then the ownership of the property will transfer. If that happens without your knowledge, then it has happened. Basically, if your brother is willing to commit fraud (which is what that would be, having a person you know is demented sign a deed), you need to see a lawyer to try to comprehensively protect your parents' assets from that person.
Answered on Dec 12th, 2013 at 7:54 PM
3 Awards
Is your power of attorney recorded in the county where the real property is located. Are any effectuating documents needs and recorded as well? If not you should proceed in that fashion. I urge you to retain counsel where the property is located to protect your mother.
Answered on Dec 12th, 2013 at 7:53 PM
Unless the POA your mother signed specifically grants you POA powers when she is no longer competent, you may not have any authority to act on her behalf now. However, should your brother get her to sign over the property, you can challenge the action in court arguing that she was incompetent to know what she was doing. You might also be able to claim your brother abused a vulnerable adult if he benefits from the sale.
Answered on Dec 12th, 2013 at 7:53 PM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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As the principal who appointed you as agent under a power of attorney, your mother is able to deal with her property in any way she chooses. She can act without consulting or contacting you. If your mother has dementia she may not have the capacity to execute legal documents. Has she been diagnosed with dementia? Has the physician who made the diagnosis, if any, provided you with an opinion that your mother is incompetent to act on her own behalf. Does she understand the effect of what she does? Does she understand and remember what she reads? In order to transfer real estate your mother must be able to execute a deed in the presence of a notary public who will be attesting to her capacity and identity. Without an acknowledgment by a notary public the deed is ineffective. Can your mother present herself to a notary public and appear competent?
Answered on Dec 12th, 2013 at 7:53 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Well, it can, but probably not legally. If your mother has dementia, then she is probably incapable of signing a legal document. You need to consult with a local attorney as to the best way to proceed. I could imagine recording your power of attorney on the land records, but I am not sure that is allowed. You may have to file an action for an injunction against him. However, a letter from the attorney to your brother letting him know that you know what is going on with a threat to take further action may be enough to get him to stop.
Answered on Dec 12th, 2013 at 7:52 PM
Corporate & Incorporation Attorney serving Huntersville, NC
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Elliott Law Firm, P.C.
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Short answer - yes. Your parents can still conduct their own legal affairs even if you have Power of Attorney. Having Power of Attorney does not remove the ability of the principals (i.e. Mom & Dad) from transacting their own business without your knowledge. It may be that if your Mother does have dementia and lacks capacity, any transaction she does on her own may be avoidable, but that is another issue all together.
Answered on Dec 12th, 2013 at 7:52 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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Apparently not, as you know what he is doing. If your mother is no longer competent she cannot contract and any agreements are voidable.
Answered on Dec 12th, 2013 at 7:52 PM
No, it should not. You may need to have an attorney assist you in restraining your brother from taking these actions.
Answered on Dec 12th, 2013 at 7:21 PM