Can You Sell a Home With a Power of Attorney?

By Heather Frances J.D.

Depending on state laws, powers of attorney can give an agent broad powers over someone’s finances and property. With a power of attorney, the person who gives the power – called a principal – can customize the power he gives his agent. Both limited and general powers of attorney give an agent authority to sell the principal’s home.

Depending on state laws, powers of attorney can give an agent broad powers over someone’s finances and property. With a power of attorney, the person who gives the power – called a principal – can customize the power he gives his agent. Both limited and general powers of attorney give an agent authority to sell the principal’s home.

Limited and General Powers of Attorney

Powers of attorney can be limited or general. Limited powers of attorney, also called special powers of attorney, are narrowly drafted to give an agent power to conduct a specific transaction, such as closing a home sale, or to access a specific account. General powers of attorney grant an agent broad authority to do anything the principal can do, including selling a home, accessing bank accounts or selling a car. Some banks and other institutions may not honor a general power of attorney for large transactions, instead requiring a special power of attorney.

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Durable and Non-durable Powers of Attorney

Powers of attorney for finances may be durable or non-durable. A durable power of attorney remains in effect if the principal becomes incapacitated, such as through a mental disease like Alzheimer’s. A non-durable power of attorney terminates if the principal becomes incapacitated. Some states allow a “springing” power of attorney, which has language that makes it ineffective unless the principal becomes incapacitated. In this way, the principal can ensure that someone else is able to sell his home if he should become incapacitated.

Specific Language Requirements

The principal’s bank, real estate agent or mortgage lender may require specific language in a power of attorney before they will allow you to use it to sell the principal’s home. For example, a bank may want to have a minimum sale amount listed in the power of attorney. Additionally, some states require certain specific language in a power of attorney, though these requirements generally do not apply to the power to sell property. State requirements more often apply to the authority to give gifts or amend a trust.

Fiduciary Responsibilities

Ultimately, an agent has a fiduciary responsibility to the principal, meaning the agent must act in the principal’s best interest and must be loyal to her. The agent cannot sell the property to himself for far under the market value if that is not in the principal's best interests. An interested party, such as a family member of the principal, may challenge the agent’s authority in court if the agent is failing to act in the principal’s best interest.

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References

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