Can a power of attorney sell the house that is being left to me?

1 answer | Last updated: Oct 10, 2016
Hernter asked...

My uncle has power of attorney, durable and medical, over my mom and the state is involved due to her falling and two cracked ribs, a blood transfusion and urinary infection. My mom has been living in her own home with my brother, who has not taken care of her.

What I want to know is can my uncle keep her in assisted living? She also has severe dementia. Nothing medical has been stated that she has to be there. My uncle wants to sell her home and her vehicles, which I am the executor in her will stating I get her home and all her personal property. Can my uncle legally do this?

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Whether your uncle is legally entitled to make the decisions he seems to be making depends on the exact types of power of attorney naming him as agent"”and on whether they have taken effect.

Most powers of attorney go into effect"”leaving the agent responsible for making decisions"”when the person for whom they've been written lacks mental capacity. If your mom has severe dementia, it is likely the powers of attorney naming your uncle as agent have taken effect.

But exactly what he may do with those powers may depend on the wording of the documents. For example, many financial powers of attorney specify that an agent must manage another's property and finances for that person's best interests; some specifically prohibit an agent from selling a home or transferring certain types of property.

You're right that when a will specifies who should get particular property, that beneficiary is entitled to get it"”but only as long as the person still owns that property at death. Sometimes unforeseeable things happen that change the plans and wishes expressed in a will.

You may be in a position now where you don't like the idea of your mom's home and cars being sold off instead of eventually going to you. But you certainly don't like the idea of her not being able to receive the care she needs.

You say that your brother was not able or willing to care for your mom living at home, so perhaps your uncle has few choices but to find an assisted living or other facility to help keep her safe and sound. Those places are usually expensive"”and so he may need to sell the property so that your mom's care will be covered, or so that she will eventually have so few assets that the government programs, Medicaid or Medi-Cal, will step in to help cover the costs.

For now, your best bet may be to have an honest talk with your uncle and express your concerns. At least that will give you a better idea of costs and options for your mom's care. And if there is a particular piece of property you are particularly interested in"”one of your mother's cars, for example"”you and your uncle may find a way to arrange for you to get it.