If my brother has my mother’s power of attorney, does he have total control who can stay in her house while she’s in an assisted living facility?

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If my brother has my mother’s power of attorney, does he have total control who can stay in her house while she’s in an assisted living facility?

My father passed away and my mother has dementia; my brother is her power of attorney and health care proxy. My mother is now living in an assisted living facility and her house has been sitting empty for over a year. My husband and I offered to stay in the house for a designated timeframe, cover all the house expenses and get it ready to sell but my brother is refusing to let us stay there. Does he have the only say? We also have a sister, who agrees with us staying there.

What do I do?

Asked on September 29, 2016 under Estate Planning, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

If your brother is the only one designated as attorney in fact or agent (those are the terms for the person given power by a POA) by your mother's power of attorney, then only he has authority over the property--your mother, by creating a POA and designating him, gave him the power. It doesn't matter how many siblings or other family members agree with you: it is your mother's house, and only she (but she has dementia) or the person she designates by a POA has authority over it.


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