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Richard
Richard, Attorney
Category: Estate Law
Satisfied Customers: 54014
Experience:  29 years of experience practicing law, including tax and estate planning.
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I have legal POA mother, who has Alzheimer's, and have been

Customer Question

I have legal POA for my mother, who has Alzheimer's, and have been her primary caregiver in her home since my father passed away over a year ago. My sister lives in the home, too (she had moved in with my parents several years prior to go back to school, and so there was another person in the home to help keep an eye on my mother; however, my mother's disease has progressed significantly since that time, and her needs have increased accordingly). My sister has caused problems and made it difficult to care for my mother since almost right after my father died. Initially, I was able to isolate my mother from the conflict she caused, but the situation has been escalating rapidly for the last 3-4 months, to the extent that it has become impossible to keep the conflict from spilling over in my mother's presence at least some of the time. As a result, the situation has begun impacting my mother's moods, attitude, and health. Last week, I had to file a "Notice to Quit or Be Evicted" at the local magistrate's office in Ravenel, SC against my sister (she finished school in May and started a job a couple months age, but has never paid any rent, and she contributes very little to my mother's care at this time). I filed the notice on Monday, she was served on Tuesday, and the deadline for her to move or contest the order is this coming Monday at 4:30 PM. However, she has packed very little and appears to have no intent to go anywhere, so I'm fairly certain she plans to contest it Monday afternoon. The magistrate's office will schedule a hearing quickly, most likely for one day later next week. I don't think I need an attorney present at the hearing, however, I would like some advice as to what I can expect at the hearing and the sort of documents I should take.
(I had gotten a referral for an attorney in my area and have been trying to get in contact with her, but her office called me back this morning to inform me this is a probate matter so she can't help me, and they were unable to provide any other referrals for me!)
Submitted: 1 year ago.
Category: Estate Law
Expert:  Richard replied 1 year ago.

Good evening. My name is Richard. Can you provide me a bit more information? Your mother is still alive, correct? And, is this an eviction order issued by the court after you gave your sister a 30-day notice to terminate her tenancy and then a 5-Day Notice to Quit? Thanks.

Customer: replied 1 year ago.
Hi Richard. Thank you for your quick reply. Yes, my mother is still alive. I did not give my sister a 30-day notice; the magistrate's office advised me it was not necessary because we don't have a tenant agreement, and she pays no rent to stay here. I only had to give her the 5-day notice to quit. IF she doesn't contest it Monday and hasn't moved, I have to go back to the magistrate's office on Tuesday and file the paperwork for them to forcibly remove her (I apologize... I was told the official name for that document and I have it written down somewhere, but can't find it at the moment).
Expert:  Richard replied 1 year ago.

I just wanted to let you know I'm on the phone with another customer, but I will be responding really shortly. :) Thanks for your patience!

Customer: replied 1 year ago.
No problem. Thanks for letting me know. I just found my notes and the next step if my sister doesn't contest would be to file "put out papers." However, I also just realized I got a message from the magistrate's office late this afternoon, and my sister HAS requested a court hearing, which is scheduled for Wednesday, September 30th at noon.
Expert:  Richard replied 1 year ago.

Ok...I'm back. If she doesn't move out, then the magistrate will forcibly evict here and all her things. The court will issue a writ of possession and then the magistrate will serve those on your sister to force her out. How fast that happens usually depends upon the magistrate's schedule, but typically it happens within a couple of weeks from the issuance of the writ of possession.

Customer: replied 1 year ago.
She doesn't plan to move out. She has contested the notice to quit and asked for a hearing... I missed a call from the magistrate's office this afternoon and just got the message they left while you were on the phone. A hearing has been scheduled for this Wednesday at noon.Can you tell me anything about what to expect at the hearing? For instance: Will I have to make a case for filing the order? Or will my sister have to justify why she's contesting it and/or why she should be allowed to stay? If the latter, I assume I'll have a chance to respond after my sister presents her case? Is it advisable to have an attorney present at this type of hearing, or is it uncommon to have one?Regarding supporting documents I should take, I'll have statement(s) from at least one, and probably two, caregivers who have made relevant supporting observations. I can also take several of my written communications with my sister regarding the conflict between us and either offering a compromise and/or requesting we try to reach a compromise, as well as a written communication I sent her a few weeks ago (after she had a blow up at me in front of my mother, which upset my mother to the point that she 1) didn't want to get out of bed in the mornings, resisted getting out of bed and going to all routine activities every day for well over a week, told me almost every day she had an upset stomach or didn't feel well, and on at least 2 days after that incident, refused to get out of bed all day, and 2) told several people almost daily that my sister was moving out soon and she couldn't wait for her to go), AND an email I sent my sister a couple weeks after the incident I just described, in which I offered ton pay for a short-term or corporate apartment rental for a month (until an apartment she told me she has signed a lease for, but which she refused to provide any other details about or verify she did, indeed, sign a lease for, is ready). Would those documents be helpful? Is there any additional documentation I should take?
Expert:  Richard replied 1 year ago.

Yes, as POA, you have the authority to terminate her tenancy. As long as you've given her the requisite 5-Day Notice to Quit, then the eviction hearing is the hearing that the judge issues the eviction order. The only issue might be the lack of the 30-day written notice before the 5-Day Notice,, but you can tell the judge you relied upon the magistrate's office in not being required to give it. Because there is no lease, the judge should approve the order to evict. You need no reason to terminate the tenancy; you can terminate an "at will" tenant (which is what she is with no lease) for any reason other than illegal discrimination against a protected group (and she is not within a protected group).

Expert:  Richard replied 1 year ago.

I just wanted to let you know that I will be logging off for the evening. Should you have a further follow up before I return in the morning, I will address it immediately upon my return in the morning. Thank you in advance for your patience. I apologize for any inconvenience.

Customer: replied 1 year ago.
That's fine. I need to log off and get some sleep. I do have another question, but I can wait until tomorrow for a reply. Thank you, ***** ***** night.
Customer: replied 1 year ago.
My primary question is one of clarification. My understanding from staff in the magistrate's office is that my sister has a right to contest the Notice to Quit, in which case a hearing is granted so she can state her case and/or be heard. However, if I understand you correctly, it sounds like that hearing is more of a formality than an actual hearing. Is that correct?
Customer: replied 1 year ago.
if I understood you correctly, is it because I have authority as POA to ask her to move, or because of the nature of an at-will tenancy, or both? And is it advisable to take the documentation I described, regardless?
Expert:  Richard replied 1 year ago.

She does have an automatic right to appeal. Just to clarify...the normal process the eviction of an at will tenant is to give a 30 day written notice and then if the person does not leave, a 5-Day Notice to Quit. Then, if that doesn't work, you file the petition for the eviction order (this is called an "Ejectment Action). To do that you fill out a Affidavit and an Application of Ejectment which you can get from the court clerk. Bring the Notice to Quit and the Eviction notice to court. Once the court rules in your favor, the court will issue a writ of possession (called Writ of Ejectment in SC), the sheriff or constable is supposed to deliver it within 5 days (tho it can take longer). Once delivered to the tenant, it will give the tenant 24 hours to vacate the property. If they do not, the Constable will contact you for a time for physical removal (it's called a "Set-Out"). At Set Out, you cause her stuff to be moved to the curb with the sheriff/constable there to enforce peace. Yes, take all the documentation you have.

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