Can I use a power of attorney to add myself and family to my mother's property?

Full question:

Using my Durable Power of Attorney from my mother, I want to add myself, my spouse and our two adult children to my widowed mother's real property residence in order to obtain a mortgage/equity loan to pay off existing reverse mortgage in my mother's name, retaining my mother's life use, but upon her death converting ownership to myself, my spouse and our two children.

• Category: Power of Attorney
• Date: 04/07/2025
• State: New York

Answer:

The ability to add yourself and your family to your mother's property using a Durable Power of Attorney (POA) depends on the powers granted in the document. A Durable POA remains effective even if your mother becomes incapacitated. The document should specify whether you have authority over real estate matters.

If the property is co-owned, you may need consent from other owners for any transfer. As a fiduciary, you have a duty of loyalty and care, meaning you must act in your mother's best interests and avoid conflicts of interest.

To establish a breach of fiduciary duty, the following elements must be present: (1) a relationship of trust between you and your mother, (2) a breach of your duties, and (3) damages suffered by your mother. Defenses against a breach claim can include the statute of limitations, lack of a fiduciary relationship, or full disclosure and consent from your mother.

In some cases, a court may require an accounting, especially if you are acting as her legal guardian or conservator.