If my mother is incapacitated, is my brother’s general power of attorney still valid?

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If my mother is incapacitated, is my brother’s general power of attorney still valid?

My mother has two homes, both in New Jersey. One is left in a will to me, the other to my brother where he now lives. My mother is in a nursing care facility specializing in dementia and she is now incapacitated. My brother has general power of attorney. Does my brother have the legal right to sell the home left to me to cover nursing home expenses?

Asked on April 27, 2019 under Estate Planning, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

1) If it was a "durable" power of attorney--one that by its very terms remained in effect even if your mother became incapacitated (it will say so if it is, right in the POA)--then it will remain valid. The point of a durable POA is to give someone else authority to act when the principal (person granting the POA) cannot act for herself.
2) Yes, as the agent or attorney-in-fact (those are the terms for the person given power by the POA) he will have the authority to sell the home left to you for nursing home expenses. His obligation is to act in her interests--so paying her expenses--not those of any heirs. The will has no power until your mother passes away, so it does not control what happens to the home until then: any person with power over it while your mother is alive, whether herself or her attorney-in-fact, may choose to sell the home at any time, for any reason. Just as she could sell it, so you'd never inherit it, so could he.


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