Do you have the legal authority to act?

The other day I had a prospective client call me with an interesting question. Her father had died several years ago, and her mother no longer lives at the primary residence her parents shared for years. Her mother now lives in an assisted living facility. 

When her mother moved out, they decided to rent the primary residence to a very nice couple. The idea was to rent the residence to bring in some monthly revenue to help pay for mom's care. The couple paid rent on time for several months and then started to become delinquent. Also, there is now some concern the couple is deliberately damaging the primary residence.

The daughter wanted to ask me whether or not she could evict the couple from the house. I explained that she had no legal authority to do so. She probably will be unsuccessful. She doesn't own the home, and her mother has no estate planning documents in place allowing the daughter to act on the mother's behalf. Perhaps if the mother had prepared a durable power of attorney appointing her daughter as agent, she might have a chance. Also, if the house was in a living trust, the daughter might be able to act as successor trustee. 

Unfortunately, the daughter is essentially stuck with this couple. Her mother is in no position to start eviction proceedings.  The moral of the story is to make sure that your family has the appropriate legal tools in place, because life can be very messy. It's better to take care of these things before a problem occurs. 

If you are in a similar situation where you might have to act for your parents, make sure they have prepared the appropriate legal documents giving you the legal authority to act on their behalf in a variety of circumstances (in this case, a power of attorney and/or living trust would have been helpful).  After all, that is one of the main goals of estate planning - to make sure people have the legal authority to act on your behalf when necessary.  Once you take care of your parents, make sure you take care of your own personal legal documents!