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
Confused
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.
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.....
Lawyer, lawyer, lawyer!!!