QUESTION
Is it legal with a durable power of attorney to quick claim deed property to myself?
Asked on Jan 15th, 2014 on Estate Planning - Michigan
More details to this question:
Father gave me durable power of attorney and told me to file a quit claim deed to myself for his house, to get it out of his estate. He wanted me to have his house upon his death.
17 ANSWERS
General Practice Attorney serving Canton, MI
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James F. Malinowski
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The Power of Attorney is able to do anything which is authorized in the document. If there is language in the POA which allows the transfer of real property, the power of attorney is able to transfer the property to himself. If father is still able to sign documents, it may be wiser for him to sign the quit claim deed. It will avoid any implication of impropriety.
Answered on Jan 17th, 2014 at 8:28 PM
It may be legal but it sure is going to sound suspicious to everyone else. Have your father do it properly with the assistance of an attorney.
Answered on Jan 16th, 2014 at 9:33 PM
I think in this case your action would be seen as abuse of powers and self-dealing under the power of attorney from your father, and you would have a very high burden to overcome in order to prove otherwise. It is much better, in my opinion, to just have your father convey the house to you. There are different instruments for it.
Answered on Jan 16th, 2014 at 9:32 PM
Edwin K. Niles
Yes, but a title company might have a problem with it, and you want insurable title.
Answered on Jan 16th, 2014 at 9:32 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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If your father has sufficient capacity to make the power of attorney, then he has sufficient capacity to execute a deed. He should do the deed himself. An agent under a power of attorney should never engage in self-dealing. I don't know if I would describe it as "illegal," but it is wrong, bad, and suspicious.
Answered on Jan 16th, 2014 at 9:31 PM
Thomas Edward Gates
For tax purposes you do not want to transfer the house now. While you can sign as the grantor with the POA, it is better if your dad does so.
Answered on Jan 16th, 2014 at 9:30 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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If the DPOA gives you the authority to transfer property, it is technically legal. However, if you have siblings or he has a wife, etc., there will be a long hard look at the transaction. Why can't dad do it himself if he is competent. If he isn't competent, then his instructions don't really mean anything, do they?
Answered on Jan 16th, 2014 at 9:30 PM
Litigation Attorney serving St. Louis, MO
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Probate Law Center Richard J. Keyes, PC
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In Missouri, there must be language in the durable power of attorney that allows you to make gifts to yourself and not equally to other siblings. If this language is not in the durable power of attorney, an inured party can bring a cause of action to set aside the quit claim deed.
Answered on Jan 16th, 2014 at 9:26 PM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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Assuming the power of attorney for property that names you as agent grants you the authority to deal with the real property of the principal, your father, you have the power to deed the property to anyone, including yourself. The power of attorney would also have to be recorded to show that you did have the authority. As you suspect, a deed to yourself is a prima facia conflict of interest and would be subjected to high scrutiny to determine if you breached your fiduciary duty of loyalty by this action. It would be better if you prepared the deed and had your father sign it in the presence of a Notary Public, thus acknowledging the act. If that is not possible, a written direction from your father directing you to take the action would be recommended.
Answered on Jan 16th, 2014 at 7:53 PM
2 Awards
You're going to mess this up. Get a lawyernow. To answer your question, you can use a POA to transfer property, if the POA so allows. You have a fiduciary duty to the power grantor, so you would have to show that you are acting in the best interest of the power grantor. If the power grantor is still living, it's better to have him execute the deed and not you. If it's for Medicaid purposes, make sure you know about penalty transfers. And don't use a quitclaim.
Answered on Jan 16th, 2014 at 5:21 PM
Corporate & Incorporation Attorney serving Huntersville, NC
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Elliott Law Firm, P.C.
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There has to be a specific gifting provision in the Power of Attorney that allows the agent to make gifts to themselves. If there is not a specific gifting provision in the Power of Attorney, the gift can be challenged, and possibly reversed, at a later date.
Answered on Jan 16th, 2014 at 5:21 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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No, as you are a fiduciary for the maker of the power and cannot self deal with reference to the assets of the maker of the power.. The only person to transfer the property you refer to is the owner.
Answered on Jan 16th, 2014 at 5:20 PM
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Maybe, but probably not. You are a fiduciary to him as his P of A. Thus you cannot personally benefit. It is possible that it is okay, I.e., you have no siblings, are his only child, and only heir. He is not married and you are named on his will as the sole beneficiary. If those are NOT the facts, then you are violating your fiduciary duty and can be liable for more than just the house. Seek out legal counsel! There may be other options!
Answered on Jan 16th, 2014 at 5:20 PM
In general, it is not wise for a parent to give up their home to a child before death. There are numerous tax and other reasons. Your father should speak to a probate attorney before he takes steps that later will cost more money then if his estate is planned out well [e.g., the house takes a stepped up basis on his death if it is part of his estate; if there is a mortgage on the house, it becomes all due and owing on transfer of the property, etc.]. If he still wants you to have title to the house, he could set up a life tenancy so that he does not have to worry about what happens during his life time. He should also read up on what a durable power of attorney means; he can still make whatever decisions he wants to but if he is not in a physical position to sign something or make a decision, then you have the ability to act consistent with what he would want you to do. If there are any other potential heirs, they will suspect you acted improperly in preparing a quite claim deed for yourself.
Answered on Jan 16th, 2014 at 5:19 PM
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No. The law is clear that you cannot use a DPA for your own personal gain.
Answered on Jan 16th, 2014 at 5:19 PM
Business Law Attorney serving Bingham Farms, MI
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James T. Weiner, P.C.
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it is legal if it is your father's wishes. but any other heirs may challenge it later. so its better for him to sign it and have it notarized. If you choose to do it have witnesses and written instructions by him to do it.
Answered on Jan 16th, 2014 at 5:18 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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No. This would be self-dealing and a breach of your fiduciary duties. Unfortunately, since your father failed to take care of this, I believe you are out of luck.
Answered on Jan 16th, 2014 at 5:18 PM