Legal Question in Elder Law in Massachusetts

Can a person holding a Power of Attorney from a Joint Tenant change the terms of the joint tenancy?

Is it legal for a person holding a Power of Attorney from one Joint Tenant (with Rights of Survivorship) to gift the interest of that person to the detriment of the other Joint Tenant?

Example:

(a) Husband and wife (Jason and Mary) own a house as joint tenants. When they buy the house, the title is in joint names. The expectation is that on the death of Jason, the husband�s (Jason�s) share of the house will go to the wife (Mary).

(b) Jason falls ill.

(c) Jason gives a Power of Attorney to his daughter, Jennifer.

(d) Jason�s Power of Attorney has a Major Gift Rider which is supposed to protect his estate for his care and for his wife (Mary).

(e) Jason�s Power of Attorney does not allow gifts to extended family members, for example, to his son-in-law (Fred).

(f) Jason�s health situation deteriorates and he is no longer able to make any decisions.

(g) On coercion from the son-in-law (Fred), the daughter (Jennifer), who has the Power of Attorney, decides to gift Jason�s share to her own husband (the son-in-law, Fred). This is done in secrecy. Mary is not told. Jason is taking his last breaths and is unable to give his consent. Jason did not authorize this gift.

(h) On Jason�s death, Mary now owns the house with her son-in-law (Fred) even though that is not what the joint ownership agreement was when it was drawn up (as evidenced by the deed), and it was not the wish of either of the joint tenants (Jason and Mary).

(i) When Jason is being buried, the son-in-law (Fred) demands half of the value of the house from the other joint tenant (Mary) even though he (Fred) did not pay a penny towards this house and Jason did not intend to give Fred his share of the house.

Are there any legal precedents or laws either approving or disapproving Jennifer�s actions?


Asked on 11/03/13, 6:20 am

1 Answer from Attorneys

This sounds like a law school exam question. Even though one has a power of attorney, they have a fiduciary obligation to use that power for the benefit of the person giving the power of attorney including carrying out the decedent's wishes.

There are I am sure many precedents to setting aside the transfer. If this is not a law school exam question, please feel free to contact me to discuss your options in dealing with this issue.

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Answered on 11/03/13, 8:19 am


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