As DPA, can I sell real property willed to another person?

A fellow caregiver asked...

My mother's house was willed to another person. I now have DPA and she is in hospice and has moderate dementia with related expenses forthcoming. Can I sell her house to cover her medical expenses?

Expert Answer

You have a financial DPA for your mother. You want to know if you have authority to sell your mother's house to cover her medical expenses, even though that house has been willed to someone else.

Yes, in my opinion you have authority to sell the house. A will is not binding until the will-writer dies. Before death, the will writer has the power to sell or give away any property that would have been covered by her will. Under the DPA, you have the same authority. Or, more accurately, I think you do. A DPA can be drafted to prohibit the sale of the principal's (that's your mother) house, or any other asset, by the agent (that's you.) But it's rare that DPAs are drafted with this type of restriction. Check your DPA document and see if there restrictions in it.

If you do sell the house, keep good and clear records of all financial transactions you do as agent for your mother. The person who won't get the houser may be quite upset when he or she realizes what's happened. You want to be able to prove that you used all the money from the sale for your mother's needs, and didn't divert any money to yourself.