Durable Power of Attorney

UPDATED: Sep 30, 2022

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Durable Power of Attorney

If I have Durable Power of Attorney as an Agent for my Elderly mother..can I evict my brother who is living with her in her home?

Asked on August 11, 2016 under Estate Planning, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

If you have a power of attorney from your mother, you may remove your brother UNLESS your mother is still mentally competent and disagrees--the agent (the person giving power by the POA) cannot overrule the wishes of the principal (the person giving the power), since the agent only has the power the principal gives him/her, and the principal can revoke that power at any time.
But if your mother is mentally incompetent or does not object to your actions, you can remove him. If he is paying rent, he can only be evicted for good cause: e.g. for nonpayment of rent; for damaging the propery; at the expiration of a written lease for a definite term (e.g. a one-year lease) or on 30 days notice for a month to month written lease or an oral lease; etc. If he is not paying rent, he is a guest and may be asked to leave at any time, for any reason. In either event, if he won't go when properly asked, you can file an eviction action (if he is a rent-paying tenant) or an action "for ejectment" (eviction for non-tenants) if he is a guest.

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