Doylestown, PA asked in Estate Planning and Real Estate Law for Pennsylvania

Q: Can a financial power of attorney remove assets from an estate without compensation?

My parents helped my sibling(1) buy a house and also provided money to make improvements - new roof, bathroom(s) remodeled, etc. Now both my parents are incapacitated. My other sibling(2) has power of attorney over both of them, and used the power to re-title the property in sibling(1) name only, removing both my parents in the process. It seems to me their 2/3 interest in the property was removed from their estate. To my knowledge, there is no agreement to compensate them/their estate. Is this a breach of duty? It seems to me if they wanted to gift the house, they could have done it anytime in the last 17+ years they owned it together.

3 Lawyer Answers
John B. Whalen, Jr.
John B. Whalen, Jr. PRO label
Answered
  • Estate Planning Lawyer
  • Philadelphia, PA
  • Licensed in Pennsylvania

A: ... hello ...

... if the facts are such as you state them, then your sibling breached her fiducairy duties ... you should consult with an experienced probate/estates attorney to resolve this ...

... it will involve court - but there is no alternative ...

... I am sorry you are in this situation ...

John

W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
Answered
  • Boyertown, PA
  • Licensed in Pennsylvania

A: In PA, the designated "attorney-in-fact" must always act to promote the best interests, especially financial, of the grantor(s) under the Power of Attorney.

Upon the scant facts you provide, there seems to be no financial benefit to your parents by forfeiting their long-held interests in the sibling's property.

It would be helpful to compare this transfer of property interests to your parents' larger estate plan, i.e., what does their will, or wills, say about disposition of the property?

Stephen M. Asbel
PREMIUM
Stephen M. Asbel
Answered
  • Estate Planning Lawyer
  • Philadelphia, PA
  • Licensed in Pennsylvania

A: There is not a clear answer to this question. It would be necessary to review the Power of Attorney document to see if it grants to the agent the power to make such a gift. It would also be necessary to evaluate whether or not this transfer was in the interest of the parents (such as for estate planning purposes) by reviewing their overall financial situation, other estate plan documents they had created and other information. It may be that this action was a breach of fiduciary duty but that cannot be determined without more information.

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