What can legally be sold by power of attorney before death

UPDATED: Sep 30, 2022

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What can legally be sold by power of attorney before death

My brother has power of attorney over our mothers estate. She is currently in a
nursing home. My brother recently sold her house and all belongings in the house.
Money is not needed to pay for the nursing home she has several retirement funds
and life insurance policies and a substantial savings. He will not let anyone see any
bank statements or give any information on where the money is going. My question
is, is it legal to sell her home and belongings while she is still alive when it’s not
needed for the money?

Asked on August 7, 2016 under Estate Planning, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

It would be legal IF it was in her interest (and if the power of attorney gave him the authority to do this: while a POA can give someone broad-based, essentially unlimited authority, they can also be much more constrained--it depends on what the POA states, since a POA grants exactly that authority, and no more, contained in it). That--whether it was in her interest--is likely the key question. An attorney in fact (the person given power by the POA; also called the agent; your brother) has a "fiduciary duty" to the principal (the person granting the authority; your mother): this is the obligation, imposed by law, to 1) exercise the power for the principal's benefit, not his own or for the benefit of other people; 2) to act with loyalty; and 3) to show the same degree of care in making decisions that a reasonable person would in making decisions about his/her own assets and money. If an agent violates the fiduciary duty, a court can order him to change what he is doing and/or to pay compensation out of his own pocket. Based on what you write, there is a reasonable chance your brother is diverting your mother's assets and money for his own benefit. You may wish to bring an action in chancery court (the court that oversees POAs; it is a part or division of county court) for an "accounting," or to force your brother to account for his actions. Such an action can be procedurally complex: you are advised to consult with an attorney, such as an elder law attorney.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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