Legal Question in Wills and Trusts in Alabama

Powers of Power-of-Attorney

I practice only in California, but the basics of power-of-attorney law do not vary much from state to state.

First, the power-of-attorney will state specifically what powers your grandmother's brother (the "attorney-in-fact" for your grandmother's sister). If it was a "ready-made" fill-in-the-blanks form, it probably gave a lot of authority, and selling the house was probably in there too. If it was drawn up by an attorney, the powers may be more limited, and tailored to the powers your great-aunt wanted to give your great-uncle.

Regarding the insurance, insurers usually don't insure a vacant house, but there are time limits, and they will generally cover a rented house, if you make sure with the insurance agent. Perhaps it makes better economic sense to sell the house. Even so, if it's not done correctly, or recorded correctly, sales by attorneys-in-fact can cause a lot of problems later.

Regarding the gifts, California law (I'm not sure about your state) requires that the power-of-attorney document specifically give this authority. A general statement like "all powers allowed by law" or "any other power" or any other catch-all phrase will not suffice. Most ready-made forms here do not have this specific gift language, so the gifts made by your great-uncle may not be valid.

A couple of other factors: 1) Is the power of attorney durable, or non-durable? It will be valid during your great-aunt's incompetency only if it's durable (this can be found in the document); and 2) powers of attorney, if they allow gifts, often limit the gifts to gift-giving habits your great-aunt already had, such as Christmas gifts or yearly gifts of money, or limit the gifts to those consistent with your great-aunt's wishes or estate plan (e.g., would your great-aunt exclude those same family members if she had made the gifts herself?).

Perhaps you should ask again whether your family can re-do the gifts more fairly.

Finally, your great-aunt can certainly be advised concerning all of this. If she's competent, she can also revoke or revise the power of attorney as well. If she's competent, and she doesn't like the way her affairs are being handled, she can change or revoke that power-of-attorney and make a new one. Also, if she's competent, and willing, it would be a good time for her to take care of her estate planning, if she hasn't already done so.

Power of Attorney

Yes, there are some things that can be done. If she is still mentally competent, she can revoke the power of attorney. But whether that's a good idea, I'm not prepared to say without a lot of additional details. One thing bothers me a lot though; if she's in a nursing home and Medicaid is paying for it, Medicaid may go after all of those who received assets, especially cash or other valuables. I hope that lawyer knows what he's doing! There are even possible criminal penalties for him if he doesn't do it right! By the way, there are other legal remedies available in this situation too if the Attorney-in-Fact (the person named in the Power of Attorney) is not performing his duties in the best interests of the lady in the nursing home.

Her competency is an issue.

If she's competent, call her and tell her yourself, unless she's near death and you would want to avoid upsetting her.

If you don't know if she's competent, try talking toher about other things first. She'll appreciate thecall anyway.

It is actually possible for an attorney-in-fact (the personholding the P.O.A.) to do something the principle (gram's sis)would not have done but which is in her best interests. Givingaway possessions rarely falls into that category, and it is alsorarely the case when the person is mentally competent.

But don't follow my advice ... ask your own attorney. Have him or her call to establish competency.

It sounds to me like he's doing wrong and illegal stuff and someoneought to blow one or another whistle.