Can aPOA sibling sign over house to themself disregarding the terms of a Will?

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Can aPOA sibling sign over house to themself disregarding the terms of a Will?

Sibling has POA and is living in house’ owner still alive, Will says 1/2 to resident sibling, 1/4 eack to other siblings. Reason – parent to go on Medicaid.

Asked on July 30, 2011 New Jersey

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

First of all, if the parent becomes permanently institutionalized (think live in facility), Medicaid can basically place a lien on the property. While it won't really impact anything while the sibling is living there, once the house is put up for sale, the lien may need to be paid off. If the sibling has a power of attorney, that is not the same as anything in the will. A power of attorney allows your sibling to make decisions for the parent. Once the parent passes, half of the title goes to sibling and each own 1/4. So, is this to be owned as joint title or tenants in common. The difference will be huge in terms of any sibling pre-deceasing the others. So, a sibling who has a power of attorney (especially one that has no limitations) can quitclaim the entire property to herself if a) your parent has been declared incompetent or b) if she wishes to simply do so. Now, the next question is is it legal? It would not be legal if your parent did not give permission under the power of attorney to change titles of ownership in any property (i.e., poa was limited), or the sibling used her position fraudulently or if your sibling is also the executrix of the will.

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

First of all, if the parent becomes permanently institutionalized (think live in facility), Medicaid can basically place a lien on the property. While it won't really impact anything while the sibling is living there, once the house is put up for sale, the lien may need to be paid off. If the sibling has a power of attorney, that is not the same as anything in the will. A power of attorney allows your sibling to make decisions for the parent. Once the parent passes, half of the title goes to sibling and each own 1/4. So, is this to be owned as joint title or tenants in common. The difference will be huge in terms of any sibling pre-deceasing the others. So, a sibling who has a power of attorney (especially one that has no limitations) can quitclaim the entire property to herself if a) your parent has been declared incompetent or b) if she wishes to simply do so. Now, the next question is is it legal? It would not be legal if your parent did not give permission under the power of attorney to change titles of ownership in any property (i.e., poa was limited), or the sibling used her position fraudulently or if your sibling is also the executrix of the will.


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