As power of attorney, can I sell my parents' house?

A fellow caregiver asked...

My parents have been living in an assisted living facility in Colorado per doctor's orders for the past year. My father has been diagnosed with moderate/severe Alzheimer's disease and my mother with dementia/Alzheimer's disease.

They both have health problems and are on several medications a day. They still own a home in Colorado and it is now time to sell it in order to pay for expenses in the facility and other medical expenses.

My mother still wants to move back to her home and cannot remember or accept the fact that her and dad's health issues would not allow them to live by themselves. They would need a full-time caregiver, which would be very expensive. Neither I nor my sister would be able to be their caregiver, as we both live in towns 150 to 200 miles from their home.

I am the agent in the Durable Power of Attorney for both my parents. I have been paying all of their expenses and monthly bills for the past year. My question to you is can I sell their home and sign all of the documents at closing as their POA?

Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

The answer should be contained in the power of attorney document itself"”although you may have to wade through some legal gobbledygook and do a bit more legwork to get the job done.

First thing to check is whether your power as agent has actually taken effect. Many DPAs, for example, require that a doctor"”and sometimes two of them"”certify in writing that the principal is mentally incapacitated before the agent will be empowered. If you don't have this paperwork, secure it.

Also check the wording of the DPA in the section that spells out the agent's powers. Most are quite specific about what the agent can do"”and by interpretation, the powers that are not specifically named may not be bestowed.

Sometimes, however, there is a sort of a catchall clause that specifies that an agent must take steps that are "reasonably and practically necessary" to carry out the principal's best interests. If you anticipate that your mother or any other potentially interested party may challenge your decision to sell, it may be worthwhile to get a signed statement from an experiences expert such as a financial planner or estate planning attorney"”just to act a insurance and evidence that the decision is objectively sound.

Your final hurdle might be getting the financial institutions and other agencies involved in the sale to accept your authority. If the DPA and evidence that it is in effect are sound, this should be automatic. Most will require that you produce a copy of the DPA and doctors' certificates as proof.

But some institutions are sticklers for their own rules"”requiring you to complete an additional document that certifies you are empowered to make the sale. And some will buck, for example, if the name of person on the house title is even slightly different than the one on the DPA: "Mary A. Smith" as opposed to "Mary Smith." These hurdles are not insurmountable, but can be annoying"”and can mean you will need to produce additional documents, such as a copy of a birth certificate, Social Security card, or mail showing the alternative forms of the name.

To avoid delays and minimize angst, prepare by asking representatives at each institution involved what it requires.