My 97-year-old father lives in his paid for home in California. Until recently, his wife of 30 some years lived with him, but was recently declared incompetent by one of her daughters and removed from the home. My understanding is the daughter has a durable power of attorney. I don’t know how she did this without my father’s permission, but she did. California is a community property state, but the dilemma is that her daughter cannot act as her mother in the sale of the property we have been told, and that this must go through probate. His wife also has a trust in which it says that it gives interest in her community property to her daughter so my question is would that document allow her daughter to sign for the house sale? The irony is her daughter is willing to sell the house. Thanks.
"She [the daughter of the OP's Dad's wife] has a durable power of attorney, they are both living and deed is in both names and wife has right of survivorship."
Your Dad's wife's daughter removed her from the home, due to her incapacity and maybe because your Dad wasn't caring for her properly OR she was burning out caring for your Dad. The wife's PoA doesn't have to have your Father's permission to remove her. It's wrong to not have discussed it or told him, but how do you know the wife's PoA daughter didn't actually do this? At 97 your Dad could have some memory failure.
You also say the daughter doesn't have the legal ability to sell her Mom's half of the home, so is not FPoA. She will probably have to pursue conservatorship for her Mom in order to make financial/real estate decisions for her regarding the house.
The rest of the info is confusing and then there's the wife's trust... one has to know what the trust actually says and how it relates to the house both she and your Dad own together. The daughter has to read the trust document to see if she is assigned any legal authority to perform transactions for her Mom.
Your original question is how can your Dad sell his home when all this is in play...
Are you trying to help your Dad sell the home? Are you local to your Dad? What's his cognitive state? Are you his FPoA?
Again, this is something for an estate or elder law or real estate attorney.
You say:
"but was recently declared incompetent by one of her daughters and removed from the home." This suggests the wife was removed from the deed of the house. This isn't true. What was likely removed was the POWER of the wife to agree to a sale or to sign papers selling the house.
If the daughter is the wife's POA and her POA gives her full powers and is well written then it is the DAUGHTER who will now make decisions for the MOTHER.
As you seem uncertain about all of this, as with all things requiring expert advice, it is time to lawyer up.
I hope you will update us about what you find out after an attorney investigates this.
It's unusual for a wife who became incompetent not to have as POA her husband, but to instead have her daughter. It does, once wife is incompetent, give enormous control to her POA daughter for ALL OF HER ASSETS.
I am hoping that you have a good relationship with this daughter and can discuss, because without that you are in for a world of woe in which only the attorneys will win.
Additionally - as far as I know- the daughter couldn't just unilaterally declare her mother LEGALLY incompetent. - a doctor (or even two depending on how the POA is written) would have to sign off on the assessment and declaration in order to deem her incompetent. It's not just something the daughter could say and then become the POA - even if she was able to remove her mother from the home.