New Market, MD asked in Estate Planning for Maryland

Q: my mother has no living will. can one of my siblings sell the home and inherite the money without recourse.

younger brother lives with mom and she's incapacitated. he's seeking a power of attorney to make all financial decisions on her behalf and possibly sell the dwelling.

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1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Estate Planning Lawyer
  • Rockville, MD
  • Licensed in Maryland

A: If your mother is mentally competent and the terms of the will and power of attorney express her intentions, then your mother is free to do as she pleases with her assets as well as grant anyone she elects to act on her behalf during her lifetime to carry out decisions for her benefit or as she directs. If, however, she is not mentally competent, or she is being coerced or compelled by someone else to execute documents against her will (or through overbearing control that she is powerless or too weak to resist), then any instrument she signs, and any actions taken under them, may be challenged and set aside. Such allegations require proof, typically of a medical nature. Any person acting in the capacity of an agent under a POA or an executor under a will has a fiduciary duty and legal obligation to act strictly in the best interests of the person who granted them that authority, and not to take actions that benefit themselves at the expense of the person. Self-dealing of that nature may be prosecuted as theft, embezzlement, elder financial abuse, and potentially other crimes.

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