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94 yr grandmother in a nursing home. Mother durable power of attorney. Will sell her house. Can she determine where money goes?

Austin, TX |

My brother and I are the beneficiaries for her total estate. Can my mother give the money made from the house to us now or do we have to wait until my grandmother passes? What power does my mother in regards to the sell of the house? The title is in my grandmothers name and she's not mentally stable. Thank you!

Attorney Answers 4


If your mother has a financial power of attorney, as opposed to a medical power of attorney, then she can do anything that your grandmother could do. However, she very likely has a fiduciary duty to your grandmother, which means she should be very careful about any money taken from your grandmother.

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When someone is acting as an agent under a power of attorney they typically have a duty to use the assets under their care for the benefit of the principal (your grandmother). However the agent may also have the power to gift assets which should only be done for purposes that would benefit your grandmother (such as Medicaid qualification). You have to be careful and consult an attorney.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website:

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I agree with the other two attorneys - their answers were wonderful & you need to carefully read their answers.

Your mother absolutely needs to consult with an attorney before she does anything.

You might not ever receive a penny even though you are a beneficiary of her estate since the money needs to be used for your grandmother's use while she is alive.

Your mother must be very careful since she has a fiduciary duty to her mother. I assume that your mother understand this duty, if not, she needs to talk to an attorney immediately.

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I agree with the other answers, and would add that if your mother makes gifts of your grandmother's property this could have a huge impact on your grandmother's ability to qualify for Medicaid, should she need it. If your grandmother survives another ten years and spends those years in a nursing home, she may need Medicaid. Your mom should consult an elder law attorney to avoid the consequences mentioned by the other attorneys and a potential Medicaid penalty.

This answer contains general information. None of the information contained in this communication is intended as legal advice. You should neither act nor refrain from acting based on information obtained from the exchange of messages on this website. None of the information contained in this answer is privileged or confidential. You should retain an attorney to provide legal advice regarding this issue. Newill Law Firm provides estate planning and probate services. Call (210) 383-0546 for a FREE initial consultation.

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