Can His Daughter's Power of Attorney Put A Halt To It All?

Question

Good morning everyone.  I apologize in advance for the lengthy post but I'd like to paint as clear of a picture as possible to explain this scenario.  I have a seller that is 81 years old that wants to sell his property.  He gave his daughter power of attorney 25 years ago & he says that he now regrets, as they are no longer on good terms.  The owner's grandson lives next door & he saw his grandfather & I going to check out the vacant unit of the duplex.  His grandson called his daughter over (she lives about 3 minutes away) & as we're walking the property, she walks in, introduces herself & states that she has power of attorney, her father has dementia & any contracts that I sign with him will be void.  Immediately after she says that, the 2 of them start arguing as I'm standing there.  After things cool off, the daughter leaves & the owner & I walk back over to his house (he lives next door to the rental).  We continue to talk, in his house about the entire situation, for another 30-45 minutes.  During the conversation, he explains to me how he built his daughter the 1 million dollar house that she currently lives in, years ago & he believes that his daughter is trying to block him from selling any of the rentals because she's just waiting for him to die so that she can try to take over his properties.  He stated that nothing is wrong with him mentally & he's never been legally labeled as having dementia or declared incompetent to make legal decisions.  He says that his daughter is currently trying to make that happen, legally (although I'm unfamiliar of how all of this works).  He says that his plans are to sell the property that he has in Virginia & move back to Florida (he also owns 2 properties there).  He also says that he's currently working with an attorney to try to get his daughter's POA revoked so that he can sell.  He did let me know that in the meantime, if there's anything else that I could do to help, to let him know.  This is a new one for me & I'm not sure if there's anything that I could do to assist.  I'm wondering if anyone here has come across this situation.  If so, how did you handle it?

Joe Splitrock · Answer

@Chris Rich my Aunt has dementia. You can talk to her for two hours and think she is perfectly normal. She is even good at covering up her lapses in memory. If I tell her "I told you that last week", she agrees quickly, so she covers it up well. Her daughter has power of attorney over her. My aunt told me her kids are trying to steal her money. She told me someone offered to buy her house for cash, but the kids stopped her from doing it. I know her daughter, my cousin, very well and you couldn't find a more honest person. My cousin is also very wealthy of her own accord. Basically what happened is a wholesaler tried to buy my aunts house for half what it is worth. I know that because it sold first day on the MLS for twice what the wholesaler offered. My cousin saved her from a bad deal and has protected her wealth so she can afford to live in a nice assisted living facility now.

Dementia is an ugly disease and you have no ideal how serious it is. Relatives get accused of horrible things because the disease twists your mind and makes you paranoid because you can't remember. My advice, as a fellow human, is to stand down out of respect. If you ever have a family member go through dementia, you will understand and appreciate my advice.

Christopher Smith · Answer

Is it a Durable Power of Attorney?

From my admittedly lamens understanding a non durable POA is only valid as long as the person granting the power permits it to be, or until that person loses capacity.

As such that person can at anytime revoke the power for others to act in their name or can excercise the power to act in their own name without restriction.

If the POA was durable and the person granting the power has previously lost capacity (however that is formally determined under the DPOA) then the power may be legitimate.

If he once lost capacity but now has it back (which I think is a possibility) then perhaps he can revoke the DPOA (assuming the POA was durable to begin with) if he can establish he has the requisite capacity again.

Braden C. · Answer

I also want to add, my wife's grandmother has dementia and early on she went through a year or so of accusing all of her relatives of being thieves and trying to ruin her life, I remember it being a normal part of the disease. I would definitely err on the side of caution.

Chris Rich · Answer

@Scott Mac

She refuses.  When I asked her what she would want to do, she said that she likes the properties & wants to keep them.  The seller/her dad wants to sell them & doesn't want to pass them down to her because they haven't been on good terms in years

Todd Rasmussen · Answer

@Chris Rich

Power of attorney is probably recorded locally. Check with your county recorder and you can get a copy of the actual filing. That will give you the information for what is actually going on. If he hasn't gotten POA revoked in the last 25 years, he most likely won't get it revoked prior to his death.

Levels of cognitive impairment are often hidden for a long time before even the closest family finds out about them. His timeline doesn't make sense to me, so you might get lucky and find a 25 year old power of attorney that may or may not be enforceable in your situation, but you also might find one that is much more recent and put in place to prevent the transaction you are trying to engage in. If you find one, the ensuing legal battle (and it's a coin flip if you are the antagonist or the protagonist of that story) if probably not worth the opportunity cost of finding your next deal.

Braden C. · Answer

I believe it depends on what type of language the POA has in it, and of course, if he has been declared incompetent. By simply giving someone POA, it doesn't prohibit you from selling real property (again, unless that's how it's written). That being said, there's a high probability that any sale would be challenged by the daughter and you could find yourself defending a lawsuit down the road.

Scott Mac · Answer

Hi Chris,

Why not just make a deal with the Daughter if she has current POA.

Good Luck!

Russell Brazil · Answer

Yes

Can His Daughter's Power of Attorney Put A Halt To It All?

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