Can You Sell a House with Durable Power of Attorney?
Having a Power of Attorney (POA) comes in handy in the unlikely event that something happens to you or a loved one that causes physical or mental impairment. It can also be used when you are not physically present to do things legally.
This document gives legal rights to do something on the person’s behalf. But, can you sell a house with Durable Power of Attorney?
What is a durable power of attorney? Will it help in selling real estate properties in the likely event that the owner cannot decide for themselves? Read on to find out more.
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What Is a Power of Attorney?
A power of attorney is a legal document with a “principal” and an “attorney-in-fact” (also referred to as the “agent.”) The principal grants the attorney-in-fact legal rights and powers to make decisions when the principal cannot do so. The attorney-in-fact should make decisions based on what the principal wants, as authorized through the POA document.
There are different types of power of attorney, and each has a significant purpose. For example, you can have a designated medical power of attorney to make health care decisions and designate another POA to make financial decisions.
What Is a Durable Power of Attorney?
How does a durable power of attorney differ from other power of attorney documents?
A durable power of attorney is the term given to most POA documents. This type of power of attorney means that the attorney-in-fact has the right to assume all facets of the principal’s affairs as stated in the legal document. A person often uses a durable POA to prepare for possible future incapacitation.
A durable power of attorney gives the attorney-in-fact the right to make decisions on behalf of the principal, even if the principal is incapacitated. A durable POA may last until death or whatever clause is stated in the document.
Different states have various rules about having a power of attorney. In Colorado, POAs signed before January 1, 2010, must clearly state that the power of attorney document continues even if the principal is disabled and can no longer make decisions.
After January 1, 2010, all POAs are durable in Colorado and apply if the principal is disabled, unless the document specifically states otherwise. In other words, if the POA is meant to end when the principal becomes disabled, it must specifically say so.
Other state laws may also allow the principal not to inform the attorney-in-fact that they are named in the POA ahead of time. Always ask local lawyers about state laws governing the issuance and validity of a durable power of attorney.
Can You Sell a House with Durable Power of Attorney?
Yes, you can sell a house with a durable power of attorney in Denver, Colorado. You won’t experience any legal restrictions or problems selling properties if the durable power of attorney is written with the things the attorney-in-fact can do.
As the authorized agent in a durable power of attorney, you must understand your fiduciary responsibility. This responsibility means you have to act in the principal’s best interests. You are trusted enough to do the right thing on behalf of the principal. Thus, you should not abuse the power given to you.
Does the State Require the Power of Attorney to be Notarized?
The State of Colorado does not require a notarized power of attorney. However, getting it notarized by signing the document before a notary public makes a POA more binding.
A notarized POA has more weight than a non-notarized one, especially when dealing with financial institutions.
Most financial institutions like banks will only honor a power of attorney if it is duly notarized. And this will come in handy when you are selling a house since you may have to deal with banking institutions during the process.
What Can an Attorney-In-Fact Do?
Can you sell a house with a durable power of attorney if you are someone’s attorney-in-fact or agent? Of course, you can! Being the principal’s agent, you have authorized powers to execute the sale of a property. If you are considering appointing an attorney-in-fact, you must understand the powers you are bestowing on your trusted person.
Here are the things that an attorney-in-fact can do in a durable power of attorney as far as real estate selling is concerned (unless otherwise restrictions are stated in the document):
- Manage the principal’s properties, such as the house and other financial and real estate affairs.
- An agent can sell a specified property that belongs to the principal as stated in a power of attorney.
- The agent may sell ALL properties if appropriately defined in the scope of the powers legally bestowed on them by the principal.
- Where finances are considered, the attorney-in-fact has the specific authority to sign documents concerning financial issues related to the property.
How to Obtain a Durable Power of Attorney?
Leaving a durable power of attorney to someone you trust is a good decision because you don’t know what will happen in the future. A power of attorney saves your family from legal challenges should you be incapacitated. So, how can you get a durable power of attorney? Here are the steps:
Understand How a Durable Power of Attorney Works
You do not cross the road without looking for passing cars. You must practice the same diligence in obtaining a durable power of attorney. Understanding the legal document gives you proper knowledge of your agent’s legal rights to act on your behalf.
Create the Power of Attorney through a Statutory Form or an Attorney
The State of Colorado has a blank statutory form you can fill up with the details of your POA. You may also consult an attorney to do this. An attorney can also address any questions you may have regarding the POA. If things are unclear, always seek legal advice.
Sign and Notarize the POA
As mentioned, you don’t have to notarize the POA. However, doing so is still recommended because it makes it more indissoluble in the eyes of the law.
Keep the Original Copy of POA in a Secure Place
The original copy of your POA is important. Thus, you must ensure its safekeeping. Choose someone you can trust, and tell this person the whereabouts of your power of attorney documents. Your POA might be needed if something happens to you. So, it is best to store it in a safe but accessible place.
Provide a Copy to Your Attorney-in-Fact
Your attorney-in-fact should have a copy of your POA to prevent future guesswork regarding its contents. Giving your agent a copy ahead of time allows the agent to go through it in detail, clarify things and ask you questions about what you want if ever the time comes that it is put into use.
Give a Copy to the Land Records Office
The Land Records Office should also receive a copy of the POA. A durable power of attorney submitted ahead of time at the Land Records Office in your area reduces future problems your agent might encounter in selling your property. With a copy of the POA you submit, the office has no reason not to acknowledge your agent’s legal authority when selling the property.
You May or May Not Give a Copy to Your Financial Institution
Some people choose to provide a copy to their financial institution. This will help your agent deal with your bank. Giving your bank a copy of your durable power of attorney lessens the likelihood of them refusing your POA, which sometimes happens.
Reasons to Consider a Power of Attorney in Selling a House
A Power of Attorney is a way to secure that your affairs are settled if you have altered mental capacity and cannot do so yourself. No one knows what will happen in the future. That is why many individuals prefer to acquire a POA ahead of time while they are still of sound mind to do it. But, there are also other reasons why a power of attorney is useful to have.
Travel
Are you always on the road? If yes, leaving a POA to someone where your estate is is very useful. It gives the agent the legal rights to manage and execute deals regarding your property while you’re away.
Convenience
Plain convenience is the beauty of all Power of Attorneys. If you cannot sell your house because you are too busy doing something, giving someone the legal rights to do so on your behalf makes the job easier for you.
Living Far Away
Did you inherit a place somewhere? Or perhaps you want to sell your property from another town or state? It can be tiring to travel back and forth to process the sale. But, having someone you trust to do it for you lessens the workload.
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