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tmiddleton21016 · Jul 1, 2012, 04:01 AM

My husband has power of attorney over his brother who is mentally challenged and physically handicapped. We live in the house that his brother has lived in for 60 years and take care of him. The house is deeded to my husband and his son. His son doesn't want anything to do with the house and wants to sell. My husband wants to stay in the house and take care of his brother. Is there any way my husband can give his brother a life estate while only owning half of the house?

AK lawyer · Jul 1, 2012, 05:20 AM

Originally Posted by tmiddleton21016

My husband has power of attorney over his brother who is mentally challenged and physically handicapped. We live in the house that his brother has lived in for 60 years and take care of him. The house is deeded to my husband and his son. His son doesn't want anything to do with the house and wants to sell. My husband wants to stay in the house and take care of his brother. Is there any way my husband can give his brother a life estate while only owning half of the house?

Not really. The only thing your husband could give his brother would be a life estate in your husband's 1/2 undivided interest. But that would not be a good idea. It would tie up the property (A "mentally challenged" owner would not be able to sell his interest without court approval.), and wouldn't really solve the problem.

The son wants to sell. He can't. His only option now is to sue your husband/ his father for partition. Giving the brother a life estate would still leave the son no choice but to go to court. The only difference is that the brother's share of the proceeds of a sale would be somehow tied up for the benefit of the brother.

I don't know why your husband would do anything. Just because his son wants something doesn't mean he will get it. An old saying applies here: "It it isn't broken, don't try to fix it."

Fr_Chuck · Jul 1, 2012, 05:23 AM

No, you are going to have to buy the son out of his share of the house. It may even be possible for the son to file in court to force a sale, but it will depend on many factors. But he can try.

Next depending on where this is, your husband really needs guardianship, not just power of attorney, power of attorney does not really give him legal rights to make choices for him, just to sign for him.

AK lawyer · Jul 1, 2012, 05:29 AM

The husband and his son were given the property for some reason. I suspect it may have been to provide for the brother. If there was a will, trust, or other history, those would be important in the event this matter were to go to court.

I have to wonder: how did OP's husband get a POA? Was the brother mentally compentent when this POA was created?

tmiddleton21016 · Jul 1, 2012, 10:14 AM

Originally Posted by AK lawyer

The husband and his son were given the property for some reason. I suspect it may have been to provide for the brother. If there was a will, trust, or other history, those would be important in the event this matter were to go to court.

I have to wonder: how did OP's husband get a POA? Was the brother mentally compentent when this POA was created?

The brother has been mentally challenged and has had cerbal palsy since birth. My husband was willed the caring of his brother in his mothers will. My husbands son lives in North Carolina and we live in Maryland so the son has no dealing with his uncle. My husbands mother left nothing to her handicapped son in her will. I am just trying to find out what kind of rights we have in staying in the house... the son is all about the money.

ScottGem · Jul 1, 2012, 10:16 AM

So the mother left the house to your husband and his son? The will instructed your husband to care for his brother?

tmiddleton21016 · Jul 1, 2012, 01:20 PM

Originally Posted by ScottGem

So the mother left the house to your husband and his son? the will instructed your husband to care for his brother?

That is correct... son wants out of house... is refusing to pay for half of the homeowners insurance and real estate taxes... I am not sure what we can do. He has also mentioned to his father about us paying rent because he is not getting any benefit of having half of the house. The son is all about the money... doesn't give a crap what happens to his uncle.

AK lawyer · Jul 1, 2012, 01:32 PM

Originally Posted by tmiddleton21016

... My husband was willed the caring of his brother in his mothers will. ...

Slavery ended in North Carolina at the end of the Civil War. Your husband's mother couldn't require your husband to care for her other son in her will; she could only request it. What you're your step-son (I assume, from your referring to him as you're your husband's son, that he is not your son.) wants and what he gets may be two different things. It appears that the will more-or-less conditioned the bequest of the house to your husband upon his caring for his brother.

If your step-son objects, he is going to have to go to court and get the house sold. Until and unless he does so, ignore him. If he is successful in doing so, I would notify the attorney who prepared the will that he has some explaining to do.

ScottGem · Jul 1, 2012, 01:54 PM

Originally Posted by tmiddleton21016

.is refusing to pay for half of the homeowners insurance and real estate taxes.......He has also mentioned to his father about us paying rent because he is not getting any benefit of having half of the house.

He can't have it both ways. If he doesn't contribute to the house then how can he expect benefit from it.

Why not just buy him out?

In any case, until the son goes to court, you can ignore him.