I put my Mother into an Assisted Living Communitity in Dec 2012, and am getting ready to sell her home. My brother has moved his ex-wife and her son into my Mother's home and will none of them will leave. He has never had a lease, he just lived there most of his life and he is 54 years old. Do I need to go through the eviction process to get them out?
Elder Law Attorney
This is a tough situation.
The short answer is yes you can do an ejectment action. The eviction terminology usually suggests an unlawful detainer action but that requires a lease. I think the proper term is ejectment action but I could be wrong.
You have to sit with the attorney and review the POA to make sure it's scope includes that power. I suspect that it does. You have to determine if it is effective presently since that will be one of the defenses against your action.
If your mother is in assisted living, that suggests to me she has some capacity. What are her wishes? She still owns the home. Is the money necessary to maintain her? Is brother and ex spouse willing to pay some rent to help maintain your mother. At a minimum, your mother very possibly will lose her real estate property tax exemption so that expense best be added to what house needs to pay. That could add a few thousand dollars to her annual expenses. Plus brother needs to agree to be responsible for upkeep and utilities.
Are there medicaid issues?
Maybe a family meeting with Mom to see what she desires?
You are going to have to sit down with an attorney to get your final answer.
Most likely. Find an attorney to handle this for you. Avvo.Com under Find-A-Lawyer.
I agree with Mr. Potter. It sounds likely you will need to go through eviction proceedings. You will need to retain a lawyer to assist you, as well. Even though most POA forms include the right to pursue legal action, in practice, courts only allow attorneys to represent someone else, in court.
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Eviction sounds like it might be necessary if they are unwilling to leave by other means.
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Family Law Attorney
If "he just lived there most of his life and he is 54 years old", it is likely because your mother let him live there. Presumably, for many years, she was aware that he was living there. Are you sure throwing your brother out of the family home is what your mother wants you to do?
Unless your mother is mentally incapacitated, you likely should ask her what she wants done before doing anything.
If your mother is mentally incapacitated, unless the POA is durable, you may not your mother's attorney in fact any more.
You likely should review the specific facts with your attorney to find out your legal options.
You will need to go through an evictions process to do so. You will also need grounds to do so - and doing so must be in the best interest of your Mother, not you. So you should use an attorney to accomplish this. I can direct you to a few quality real estate attorneys who can handle this very quickly and relatively inexpensively for their skill.
Matthew Johnson phone# 206.747.0313 is licensed in the State of Washington and performs bankruptcy, short sale negotiations, and estate planning in Whatcom, Skagit, Snohomish, King and Pierce counties. The response does not constitute specific legal advice, which would require a full inquiry by the attorney into the complete background of the facts and circumstances surrounding this matter; rather, it is intended to be general legal information based on the limited information provided by the inquirer; it This response also does not constitute the establishment of an attorney-client relationship, which can only be established after a conflict of interest evaluation is completed, your case is accepted, and a fee agreement is signed. Johnson Legal Group, PLLC