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Wednesday, June 17, 2009

Answering your questions

There are two comments attached to one of my earlier posts in which a reader asks about two people acting as Attorneys under a Power of Attorney (POA). A particular issue that you are dealing with is whether or not to sell your mother's house, now that your mother is living in an assisted-living facility.

It's not uncommon for people making POAs to name more than one person to act. When they do so, every decision made by the Attorneys must be jointly made, as they share both the rights and the responsibilities of the role. A parent thinking of appointing more than one of their children to this role should think it through carefully. In an ideal world, everyone would get along all the time, but that is rarely a reality.

In looking at your specific situation, I would start by examining the POA itself. Does it place any restrictions on the kind of actions that the Attorneys can take? Does it include any provisions for resolving a dispute? It's unfortunate, but many POAs that are currently in use are much too simplistic and don't contain enough guidance for the Attorneys trying to use them.

I would next ask about your mother. Specifically, I would want to know whether your mother is still able to give meaningful input into decisions. Obviously your mother is experiencing mental incapacity, as the POA would not be in use otherwise. But this doesn't necessarily mean that she is completely unable to form and express a reasonable opinion. If she is able to do that, the you should try to work with her input. If your mother is unable to participate in the decision-making at present, has she ever expressed wishes about what she wanted done about her house? Does her Will say anything about her house (e.g. that it be given to a certain individual)?

I am not suggesting that you involve your mother in something that your mother can't understand, or that current factors be ignored in favour of something that your mother might have said years ago. I am suggesting that your mother be invited to participate if she is able to.

My biggest question is that of why one Attorney doesn't want to sell the house. An Attorney's job is to act in the best financial interests of the donor of the document (in this case, your mother). The Attorney is not entitled to hold onto a valuable asset like a house for sentimental reasons or for reasons of personal financial gain. Every Attorney is required to make the best of the donor's assets. In most cases this means selling a house that is no longer used and investing the money for the benefit of the donor.

Is there a solid reason for the refusal? Is she under the impression that your mother may one day return to live in the house again? If so, consult with your mother's doctor to get a realistic picture of whether this is likely to happen.

Is the Attorney living there herself and concerned about finding other accommodation? Is there a tenant who is causing a problem about leaving? Is the Attorney concerned about the housing market and suggesting that the sale be postponed to maximize the price you could get?

Of utmost importance is the question of whether your mother needs the house to be sold so that she can use the money to support herself in her assisted-living facility. If so, this is the primary consideration no matter what else is going on.

You can see that there may be a good reason for the refusal, and if there is, the Attorneys have to work together to resolve the issue. If there is no good reason, or the reason is for the Attorney's own personal gain, this is not acceptable.

You mentioned that the Public Trustee might end up being involved, and this is not an uncommon solution where Attorneys simply can't agree. Depending on your mother's assets, you might find a trust company to be another good (neutral) party to take over as Attorney.

Before giving up on the joint Attorneyship, you might try to fix it, and I get the impression that you are motivated to do this. You might benefit from using a mediator who can help with the decision-making. An estate-planning lawyer or family lawyer could help you find a mediator. If you decide to use a lawyer, it would be a good idea for both of you to go together. Often, when one person hires a lawyer, the other person sees it as a declaration of war, so be careful about how this is handled.

I wish you the very best of luck. Looking after elderly parents is rarely easy, either physically or emotionally.

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