Dennis:

My sister and I are joint power of attorney for an incapacitated aunt. Her condo will be going up for sale. My sister sold and donated some of her house items, jewelry and furniture. She and my mother took the money for what was sold. Are they entitled to this? Doesn’t the money need to go into my aunt’s bank account? If they kept the items from her house like jewelry are they allowed? If they don’t sell it what do they do with it? Also, I am the executor of the will but I don’t think it relates to this issue.

P.B.

Thank you for your question about powers of attorney and your duties as agent.

You are correct that your sister and mother should not have kept the money from the sale of the personal property. It should have been deposited in your aunt’s bank account. An agent under a power of attorney is a fiduciary, meaning that you owe total loyalty to the person you are acting on behalf of and are to avoid conflicts of interest where possible. You are definitely prohibited from benefiting from the income and assets of the principal and you are not supposed to co-mingle your assets with your aunts. So your mother and sister should return that money and deposit it into her bank account where it should be used solely for your aunt’s benefit while she is alive.

If they also removed personal property like jewelry, they need to return that also. If you aunt still has mental capacity, she can designate where she wants it to go now. If not, you should hold on to the jewelry and disburse it upon your aunt’s death according to what her Will says. If your aunt runs out of funds and it is necessary to sell the jewelry in order raise money to support her, you should do so.

You can go here for more information about powers of attorney. If you need more assistance with fulfilling your duty as power of attorney agent for your aunt, you can call the office of Riverside estate planning attorney Dennis M. Sandoval to schedule an appointment to discuss your situation. The number to call is 951-787-7711.

Dennis M. Sandoval

Riverside, California estate planning and elder law attorney

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