Is it legal to sell my father's things before he's moved out of his home?
I have lived with my father in his home overseeing and managing his in home care for several years. Recently he fell and broke his hip. Recovery was slow at first but he is a remarkable man and stood up twice today during PT and also transferred himself from his wheelchair to his bed with just a little assistance. I believe he will be able to return home eventually, in a month or so, because he is so incredibly strong and loves his home. So, my sister has been coveting some family heirlooms including antique furniture since my mother's death over 4 years ago. My brother is POA and trustee for my father's estate. He notified me by e-mail that he wants to have a garage/estate sale next weekend and my sister is going to be taking the family heirlooms including dining room table and other items. I objected for the obvious reason that our father is not dead and there is no compelling reason to have an estate sale and deprive him of his property. He has significant funds available for his needs and an excellent retirement benefit. I realize I may not be able to convince my brother to allow our father to return home and not make other long term arrangements for his care but that decision has not been reached. But I do not know of any legal basis for my brother to allow our sister to take his property prior to his death and certainly not before a decision is made about him possibly returning home. Can my brother legally allow this? I do not want the furniture for myself so there is no dispute about who gets it.
Expert Answer
To avoid a misunderstanding that could further damage your sibling relationships, we recommend that you first meet with your brother and sister to discuss your father's future and your own. We wonder what will happen to you if your father does not come home? Where would you go? Do you have the financial where-with-all to re-start your life without living in your father's home? You will want to be upfront about your own concerns, as your siblings will definitely want to talk about them. Keep in mind that your brother and sister may be making decisions that seem precipitous to you because they worry that you may want to stay in the house - even after your father has died.
As for the legal realities, those answers depend on what the power of attorney and trust documents actually say, and what your brother's legitimate reasons are for wanting to take these actions. The legal documents may allow him to take these actions, but even then he still needs to abide by state-law imposed standards of fairness and reasonableness, and he must act in a way that is in the best interest of your father. The most difficult part of the legal approach is that the only way to stop your brother would be to file a court action to ask a judge to override his intentions or to replace him as trustee, and that would be a very expensive (and time consuming) process. For that reason, we don't think a legal approach will be effective, even if technically valid. You might consider hiring a lawyer to send your brother a letter stating why you think these actions are inappropriate, but that might only irritate him to a greater degree.
There are additional difficult questions you will want to discuss with your siblings, and it is important that you think through your own future before you face these decisions. For example, if your father will not be coming home do you need to ask your siblings for some time find a place to live? Do you need to ask them if they would help you financially through this transition? If the house is sold, will you receive a portion of the proceeds that would provide some security for your own future?
In the end you will need to decide what your priorities are, in terms of preserving the family relationships, and then plot out your strategy with those priorities in mind.