Recent Power Of Attorney May Not Revoke Earlier One

Question: Our mother is in her 80s, and we recently moved her from her Sun City home to an assisted living facility. My younger brother has always been a problem for the family, and for the last three years he has lived with our mother. I have a power of attorney from our mother that she signed in 2016. We are in escrow now to sell her Sun City home under our 2016 power of attorney. At a recent family meeting to agree on what to do with the proceeds of the sale of our mother’s home, my younger brother produced a power of attorney signed by our mother last year, and he says that only he has the authority now to sign the deed to sell our mother’s home. My older brother and I want to give him 1/3 share of the sale proceeds, but my younger brother wants more of the sale proceeds because he took care of my mother the last three years (while living rent-free in her Sun City home). Does my younger brother’s power of attorney signed by my mother last year automatically revoke my 2016 power of attorney? In other words, can I still sign the deed to the buyer now to close escrow?

Answer: First, a more recent power of attorney does not automatically revoke an earlier power of attorney. Second, your mother could have revoked your 2016 power of attorney by a writing, e.g., specific language in the recent power of attorney to your younger brother, or by a physical act, e.g., tearing up your 2016 power of attorney in front of witnesses. Therefore, your 2016 power of attorney probably authorizes you now to sign the deed to the buyer and close escrow.

Note: After the close of escrow the title company may then hold the sale proceeds in escrow until you and your two brothers can agree on how to share the sale proceeds. If there is no agreement after a month or two, however, the title company may interplead the sale proceeds with the Superior Court, and let a Superior Court judge decide how the sale proceeds will be distributed.

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