I am POA but my brother has basically taken control of mom's house. What can I do?

A fellow caregiver asked...

I am a health care proxy and power of attorney for my family. Recently my mother was hospitalized and since then her needs have changed. She needs a female with her and wants one of her daughters to be that for her. The problem is my adult brother will not leave the premises and has caused many problems with the whole family. He has changed the locks on the doors as well as holding on to personal finance information. I really want to be able to get back into the house, since I am power of attorney, and get my mom's home set up right when she gets home. My sister and her husband are willing to help in taking care of my mom, and I feel it would be a safer environment for her to be in. My brother isn't actually a tenant and I don't feel safe to take care of my mother's needs. We are tired of his scare tactics and need to know what we can do.

Expert Answer

Steve Weisman hosts the nationally syndicated radio show A Touch of Grey, heard on more than 50 stations, including WABC in New York City and KRLA in Los Angeles. He is a practicing lawyer specializing in estate planning and is admitted to practice before the United States Supreme Court. He's a public speaker and commentator who has appeared on many radio and television shows throughout the country, and he's the legal editor of Talkers magazine, the preeminent trade publication of talk radio. His latest book is The Truth About Avoiding Scams.

As the agent for your mother pursuant to her Durable Power of Attorney, you are in a position to exercise control over the real estate on her behalf. I am assuming that your mother owns the home and therefore you are authorized to act on her behalf in regard to this home. You indicated that your brother is not "actually a tenant." Although there may not be a lease, he still may be considered a tenant under an oral tenancy. If he is not a tenant under either an oral agreement or a written lease, he is only a guest and does not have any continuing rights in the home. He certainly does not have the right to change the locks. I suggest that you contact your brother and inform him that as your mother's agent under her Durable Power of Attorney, you are asking him to give her financial information that he has to you and also to vacate the premises for your mother's benefit. You can let him know that if he refuses to do so you will file a criminal violation for trespass. Ultimately, if he continues not to be cooperative you may need to hire a lawyer, but the threat of a criminal complaint may be sufficient to get him to leave.