Can my sister who has power of attorney sell my mother’s home before my mother dies?

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Can my sister who has power of attorney sell my mother’s home before my mother dies?

 A document has been granted to convey my mother’s property to her children but not until her death.

Asked on August 12, 2011 Vermont

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

First, you need to reference exactly what the POA says--a POA can provide someone power to sell a home, or it can be much more limited in scope. So the POA itself will define the extent of your sister's power.

Second, the attorney in fact (the one to whom the power is given) is a fiduciary and must exercise the power for the benefit of the one who granted it (your mother). If this is the wrong move for your mother, it may be possible to challenge it on that ground. For example, say that the home would be split amongst the siblings, but this sister gets all cash in the will--you may be able to show that this act, selling the home to convert it to cash--is a self-interested one that benefts your sister, not your mother.

Third, even if your sister can make the sale, the money has to be used or or remain with your mother, so if you sister has diverted the funds, she has breached her power and possibly committed a crime (a form of theft) as well.

If you have reservations about yous sister's intentions or actions, you should consult with an attorney.


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