Is it legal to sell my father's things before he's moved out of his home?

3 answers | Last updated: Oct 05, 2016
Rios asked...

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 Answers

Judy and Fred co-mediate family property and financial conflicts, and each work individually as mediators as well. Judy Barber, a mediator and family business consultant, assists clients in resolving overlapping family and money conflicts so they are better able to make sound estate planning decisions. Frederick Hertz is an attorney and mediator who specializes in resolving co-ownership matters involving families, siblings, spouses, cohabitants and domestic partners.

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.

Community Answers

Rios answered...

I have tried off and on for the last four and a half years to persuade my siblings to consult with a geriatric care manager due to ongoing conflicts between us. My most recent and long term effort was to try to have my siblings and myself meet with the hospice social worker after my siblings signed our father over to hospice in home service in June last summer. I wanted to meet to discuss sharing of responsibilities as my plans were to return to Colorado by the end of the summer - some six months ago. I had told them a year ago March that I wanted to return there. My siblings refused time after time after time to either meet with the social worker or to help with any of the ongoing responsibilities as to managing our father's care. When just the three of us have met, things would fall apart quickly for various reasons including no prior notice being given to me that a meeting was planned and about to arrive at my door and usually decisions had already been made and were not open to discussion anymore anyway. I have since refused to meet with my siblings unless a mediator or social worker or care manager is present. The most upsetting of our arguments for me personally directly effected my father's health as my sister insisted, against the medical advice of my father's hospice nurse manager, that our father travel an hour to visit her about once a month for the weekend. My father always returned with a urinary tract infection and was then bedridden for up to a week. He would never recovery completely back to the level he had been before. But he would recover enough for her to invite him again and then he would get sick again, on and on. We would have fights about this but my sister claimed she knew best and my brother would not do anything to stop her. The funds I had available to leave six months ago are gone. Hospice thought my sister was actually sabotaging my plans to leave which I believe to be true. My last attempt to meet with my siblings with the hospice social worker present was answered by my brother's immediate termination of hospice thus cutting off that resource to me. So talking with my siblings is not an option. Even if I were to hire a mediator, which I cannot afford, I do not believe they would sit down at a table to discuss anything. I believe there has been an ongoing pattern of their actions being opposite our father's best interest and I see nothing in their recent actions to persuade me otherwise.

We are sorry to hear how futile this all seems to be. One option would be for you to meet individually with a geriatric care manager and see if she or he would be willing to initiate communication with your siblings, in the hope that this would motivate them to respond in a different way. If this is not successful you may be left with only two difficult options: retain an attorney who can advocate for you and make demands on your siblings, or accept that you won't be able to change their behavior and then figure out how to make changes to your own actions accordingly. Remember, even if your brother wrongly sells some of your dad's things that does not mean you can't continue to help him out as best you can.