Power of Attorney vs. Temporary Conservator for Preempting a Sale

Power of Attorney vs. Temporary Conservator for Preempting a Sale

Specialist · Boston, MA · Member since 2018 · 75 posts · 7 votes

The situation I describe here of course can and will be handled by a qualified attorney.  However I want to understand all of the options and steps myself, even if an attorney will ultimately handle things.

Please forgive the long post, I attempt to concisely summarize a somewhat complex situation.

I have a cousin who owns a 2 Family in a hot market, has been a owner-occupied consumer mortgaged owner for nearly 2 decades.  Sadly, the relative has developed dementia and as of 3 months ago is in a nursing home.  I had been assisting  with financial matters for nearly three years, and I am her agent-in-fact/attorney-in-fact under a Durable Power of Attorney.

When she was recently hospitalized and found to be lacking capacity, a sister-in-law appeared and managed to convince the Probate Court to appoint her as my cousin's (emergency)Temporary Guardian and (emergency)Temporary Conservator.  Although the jurisdiction is in the state of Massachusetts, I would greatly appreciate any ideas or advice from other states as well.

The sister-in-law has not been in touch with my cousin, the home owner, in years and has already made several reckless and irresponsible decisions using the powers granted via the Temporary Guardianship/Conservatorship.  The same probate court has accepted my filings in objection, but everything is backed up right now and there are many burdensome factors in play.  It will likely be another month at least before the matter gets even a glance from the Judge.

The sister-in-law immediately began taking steps to try to take control of the property, and is trying to sell it as soon as possible.  It appears she is leveraging nursing home expenses to try to liquidate my cousin's assets.

I was already in the process of preparing profitable pre-sale arrangements to the property and the personal mortgage on it, that would significantly increase the upside on selling the property.  Furthermore my cousin may prefer to return to her home for the time being, which is a far better and safer environment than a nursing  home right now.

The sister-in-law is putting no consideration into arranging a good pay-off figure with the current mortgage lender, nor listing the property on the open market.  Worse yet, she is not considering my cousins wishes, and already has the proceeds from the sale claimed to pay for care that my cousin does not want.

I am trying to find a way to 'halt' or slow down the sister-in-law's process, while we wait for the court to digest all of this.  

My DPOA document has additional language specifically added to grant me the power to perform real estate transactions on the Principle's behalf.  The Conservatorship, on the other hand, pursuant to state law, still would require a judge's approval before closing a Real Estate transaction.

What can I do to protect the property preemptively?

[The property and/or the equity/proceeds would be used to better arrange for my cousin's care.  There is no living spouse or other kin.  The property needs some light rehab, and there are no tenants.]

I have brainstormed:

- Transfer the deed to  a Irrevocable Trust

- Use some other type of specialized Trust

- Some other sort of entity

- Execute a Mortgage or other type of lien on the property

- Find my own buyer and sign a Purchase & Sale agreement with them, there by tying up the property in a deal 

-(bad idea) Transfer the deed from my cousin to myself + my cousin.  This would very likely be contested and would impact my cousin's Medicaid eligibility.

- Many of the other creative Instruments often discussed on this website.

- A specialized deed instrument such as warranty or quit-claim.

(note: some details of the matter are omitted for privacy reasons.  Mods, if this violates any forum rules, please remove this post)

Many thanks for any feedback or advice.

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  • Rental Property Investor · Concord, GA · Member since 2015 · 3k+ posts · 3k+ votes
    4y

    Sounds like a mess. Have you tried to have a conversation with the "sister in law"?

  • Specialist · Boston, MA · Member since 2018 · 75 posts · 7 votes
    4y
    Quote from @John Teachout:

    Sounds like a mess. Have you tried to have a conversation with the "sister in law"?



    Direct communication has been difficult, at best.

    Yes it is a mess.  These fiduciary matters are also extra difficult to research, since so much of the case law is not public record. 


  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    4y

    @Greg K. The problem here is the guardianship. Once that order was entered the guardianship trumped the POA. Essentially all property owned by the ward became vested in the guardian.

    Generally speaking, a buyer cannot get owners title insurance on a deed executed by an attorney-in-fact after a guardian of the property has been appointed. So an arms-length sale to a third party is not happening. Further, an attorney-in-fact using a POA to transfer property to himself/herself (direct benefit) is a conflict of interest and prohibited... at least in all of the jurisdictions we cover and I would guess this is the case in every state.

    There is a process for removing and replacing a guardian who isn't acting in the best interests of the disabled adult. You'll want to research local law on this. Good luck.

    Gimer Law516 Reviews
  • Specialist · Boston, MA · Member since 2018 · 75 posts · 7 votes
    4y
    Quote from

    @Tom Gimer

    :

    The problem here is the guardianship. Once that order was entered the guardianship trumped the POA. Essentially all property owned by the ward became vested in the guardian.

    Generally speaking, a buyer cannot get owners title insurance on a deed executed by an attorney-in-fact after a guardian of the property has been appointed. So an arms-length sale to a third party is not happening. Further, an attorney-in-fact using a POA to transfer property to himself/herself (direct benefit) is a conflict of interest and prohibited... at least in all of the jurisdictions we cover and I would guess this is the case in every state.


    @Tom Gimer  
    I do much appreciate your response and advice.  Although my research indicates that unless a specific court order to revoke a DPOA(or healthcare proxy) is sought, an agent-in-fact can still continue using their vested powers,  more to the point however:

    "Generally speaking, a buyer cannot get owners title insurance on a deed executed by an attorney-in-fact after a guardian of the property has been appointed."



    may actually hold true in my state.  This is now at the top of my list of questions for an attorney.  Thanks again.

  • Tom GimerBusiness Member
    DMV · Member since 2017 · 3k+ posts · 3k+ votes
    4y

    @Greg K.I'm not suggesting the POA was revoked... just that the principal who granted the POA no longer "owns" the property during the pendency of the guardianship.

    Gimer Law516 Reviews
  • Specialist · Boston, MA · Member since 2018 · 75 posts · 7 votes
    4y
    Quote from @Tom Gimer:

    @Greg K.I'm not suggesting the POA was revoked... just that the principal who granted the POA no longer "owns" the property during the pendency of the guardianship.

    Right I did not take it that way.  What you're saying definitely makes sense.  
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