Can I use Dad's durable power of attorney to quit claim properties to myself?

A fellow caregiver asked...

I have my father's durable poiwer of attorney. He has been declared incapacitated. My mother died this year and my elderly brother is mentally retarded and on Medicaid. I have two sisters. My parents wanted me to protect my brother's Medicaid. They also did not want my sisters involved in the decision making. I want my sisters' help and they are fully cooperating with me.

I feel my father might not make it through the year. I need to quit claim properties that have no leins on them. We are all in Texas, as are the properties. Can I, using my dads durable power of attorney, quit claim all the properties to myself? My father is not able to sign due to Alzheimer's.

Expert Answer

I think you probably could use your authority under your father's durable power of attorney to quitclaim property to yourself. However, I have some questions about that. Does your father have a will, or other transfer-on-death document (such as a living trust) that leaves these properties to others, such as his sisters or your elderly brother, as well as to you? If your father has such a will, then the other beneficiaries could assert that you improperly used your position as your father's "attorney-in-fact" [agent] under the DPA to benefit yourself at their expense.

My question is: why do you want to quitclaim these properties only to yourself? I suggest that you transfer the properties in accordance with your father's desires for what happens to them upon his death. Clearly, you do not want to quitclaim any interest to your elderly brother. But you'll want to keep good relations with your two sisters, who you say are now fully cooperating with you. You could also quitclaim the properties to yourself and your two sisters, giving each a one-third share. If that's not what your father wanted, and your sisters know that, then there would be no reason to do it.