Can POA just sell the house from under Mom and use the rest of that money to care for her without the consent of the three other siblings?

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My mother is currently the primary caretaker of my elderly grandmother who has dementia. My mother lives and cares for my grandmother in my grandmother's home and has been doing so since my grandfather passed away 10 years ago. My uncle has power of attorney. Recently, my uncle informed my mother he was going to put her house on the market to sell and with the sale of the house give my mother "her cut" of what she would have gotten after my grandmother were to pass, before she passes. He and his wife would than take over the care of my grandmother in their home. The will my grandfather left specifies that as long as my mother is taking care of my grandmother and maintaining the property (bills, taxes, etc.) that she can stay for as long as she would like.


Is this even legal in the state of Florida? Does she have any legal recourse? Can he just sell the house from under her and use the rest of that money to care for her without the consent of the three other siblings?


Need Help...Thank You


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Mom needs to take the will to a lawyer. Dads wishes may overide what the brother wants to do. The POA should not be able to sell a house unless its for the care of his Mom. Meaning, none of it gets split. The house will have to sell at market value and proceeds put away in an acct and any money used is for her only. If she ever needs Medicaid within the five years she sold the house they will penalize her for POA splitting the proceeds. She will have to private pay until she meets the penalty.
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Reply to JoAnn29
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I would talk to an Elder Law attorney. If the plan of the POA conflicts with what is outlined in the will and estate planning documents, I'm not sure it is legal. The attorney would be familiar with your state's laws and could advise you further on what course to take.
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Reply to FrazzledMama
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Sounds like you need to see a lawyer. As long as your Mother is able to provide for your grandmother's needs and your grandmother is content with the arrangement, why would your uncle want to change it? Why would he want to remove her from her HOME? Forgive me, but it sounds like you have a greedy, heartless uncle. (Or maybe he is in desperate need of money?)
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Reply to dlpandjep
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Isthisrealyreal Aug 18, 2018
My thoughts exactly. Aging parent sure brings out the real in people.
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The issue is here is controlled by Florida Statutes 709.2101 and 709.2102. These sections of the Florida power of attorney statute control what authority the agent has. Generally speaking, an agent can only do what the power of attorney allows him to do. If there is a provision in the power of attorney that allows him to sell the house and use the funds to take care of the principal he is likely authorized to do that. However, he can't take that money or any portion of it as a gift for himself unless the power of attorney provides for it and the principal specifically initials or signs next to that provision.

If a lawsuit is filed to stop him from selling the house, the court will look to see if the power of attorney was legally executed and whether the power of attorney specifically provides for the power and authority to sell the house. It is the court's job to ascertain the intent of the principal by what is written in the POA. Again, the principal must benefit from the sale of the house, not the agent. If he uses that money for himself, he will have an issue unless it is specifically provided for in the POA and the requirement of F.S. 709.2102 are met.

Careful consideration should be given whether or not to challenge the POA. An attorney should be consulted. If the POA is challenged, the losing side may be responsible for paying the attorney's fees of the winning side. That can be very expensive. So, be sure you are right before you challenge in court.

This is not meant as legal advice as I don't have the complete information. Consult an attorney and talk to him/her about the specifics of your case.

Nicolas
Attorney at Law
Miami, Fl.
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Reply to nbabinsky
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Agree with above recommendations to see elder Atty / litigation Atty specializing in elder law. Also, unless part of a sound financial plan (not a fly by the seat POA scheme), shares of money from the sale of the house should not be distributed to the adult children before the parent dies unless the parent is a millionaire because; of the Medicate look-back; the money may be needed for the parent’s care; if the parent is of sound mind, the parent has a right to change the POA and the will until the day they die; and who knows how many other reasons.

Lawyer, lawyer, lawyer!!!
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Reply to ATof3kids
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It sounds like grandpas will placed a usufruct on the property.
They - “usufructs” - aren’t the usual inclusion in a will. I’m in Louisiana and they get done here. Usually done for 2nd homes, vacation condo, generationally owned camps; it’s on property owned outright and willed to his kids from first marriage BUT placing a usufruct on it for the later wife to be able to use as she wants for her lifetime. Property cost maybe on wife # 2/3/4 or maybe on kids (yeah dad from the grave gets the kids to pay). If kids want property, they have to make it worthwhile for later wife to leave by paying her to relinquish her usufruct. Or they all make nice and share the place and it’s costs. But she’s in control of use. If she’s a way way younger wife, she & the usufruct can outlive the kids. 😆 😆!!

To me - in my not an atty viewpoint- the issue would be is whether uncle can sell house at all if grannie is alive, living in the home & mom is doing as required by them by the terms in the usufruct in the will. If grandpas will was probated, the terms of the will were filed and signed off by a judge.

If the distribution of the terms in the will is predicated on grannie living in the home, (I bet it is) that’s why he all of a sudden needs grannie to move in with him & his wife.

Your mom cannot let grannie move from the house!!!
If grannie moves, game over. Uncle can do whatever DPOA allows.

Your grannie can have your mom become her dpoa. That’s stops this cold. Could grannie change dpoa to your mom?

If not, as long as gran & mom in the house, your mom is in a position to negotiate with your uncle. It’s not a DIY situation. I’d suggest she find a probate attorney that does litigation. They are going to know how to do a futures valuation and deal with costs paid. Litigation is specialty work. Probate guys who do these will know elder law atty to bring in if need be. If grannie dies or moves out before a deal is struck with Uncle, your mom could find herself with zero if uncle is a real POS.

I’d suggest your mom contact probate court to get a copy of all the documents filed for grandpas estate. Probate is open records so you can get these, maybe even via a on line download for a few $$ per document. Carefully read everything. And write down ?s and take all to the new atty to discuss. You can’t be all maybe mañana in this, cause if grannie dies and he’s Executor, it goes all in his control.

Is there a reason why Uncle is doing this now? If mom & grannie have been living together with no issues for a while, there’s a reason why this is important now.....
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