My mom is in the hospital and she's dying. She has indicated to the hospital staff that her common law husband has been abusing her. Tomorrow I will become her power of attorney. Since she no longer wishes for him to be in the house, can I evict him?
First of all, if your mother is being abused, it could very well be a criminal matter. If you can prove abuse, then it should be reported to the authorities, before something horrible happens. Sorting out the property interests is of secondary importance.
With regard to the property interests, there are not enough facts in your summary to give you a complete answer. I assume from your summary that you and your mother are Texas residents. It sounds as if the title of the house may be in your name and your mother's name, as you refer to it as "our house." Texas is a community property state and common law marriages are recognized under Texas law. The title of the property has some bearing on what you can do and what the relative rights are, but your mother's interest in the property is affected by her marriage.
My guess is that you will have a difficult time evicting your step-father, because it is quite likely that he has rights in the property. At the very least, I believe you should contact an estate planning attorney and determine what your options are.
I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your state. The law changes frequently and varies from state to state.
As there are several legal issues involved in your question, which require analysis of specific facts, you will need to speak directly with an attorney to find accurate answers. I agree with the other attorney that reporting abuse is the first priority. But regarding your power of attorney and property issues, you'll need to speak with an attorney. Some of the questions that arise are: Does mom have capacity to appoint an agent? Is there a common law marriage? Is the homestead community property or separate property?
My comments are for general informational purposes only, and do not apply to any particular set of facts. Reading or using this information in any way does not create an attorney-client relationship.
You should contact Adult Protective services either online (http://www.txabusehotline.org/Login/Default.aspx) or via their hotline: 1-800-252-5400. This organization can conduct an investigation and potentially cause him to be charged criminally. I would also ask them if there is anything they can do or recommend regarding the living situation.
You should talk to an attorney immediately about your options - preferably someone knowledgeable regarding real estate and probate law.
If your mother is still competent mentally, she should draft a Will with the assistance of an attorney (if she has not done so already). Some attorneys will make hospital visits.
The information contained in this post is for informational purposes only and should not be construed as legal advice. Use of this information does not create an attorney-client relationship.
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