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Can Power Of Attorney Sell Property Before Death?
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Can Power of Attorney Sell Property Before Death?

Yes. You can sell a property using the Power of Attorney. Using POA, however, brings another level of complexity to selling a home, like specific rules, paperwork, and communications. The scope of the POA must not be abused, and the agent must maintain their fiduciary duty.

You should conduct a property sale with all parties involved to give consent. On the other hand, there are times when you must give authority to another person to make such deals on your behalf, which makes power of attorney a crucial tool in the context of comprehensive estate planning.

Probate Attorney

Selling  a Home with a Power of Attorney

A power of attorney authorizes another person to take legal action on your behalf. You can limit the authority’s scope to include only a specific task, like completing the sale of your home or, more broadly applicable, depending on the TYPE OF POWER OF ATTORNEY. While a power of attorney is recognized throughout, each state has its regulations and restrictions for how and when you can use it. Find the key considerations on the power of attorney matters from the following information.

What is power of attorney?

The legal document that permits a person to act in your capacity if you cannot make decisions regarding finances or medical matters is a power of Attorney (POA). An agent is an individual you authorize under a power of attorney, and for as long as a power of attorney remains in effect, the agent is required to act in your best interest. Equally important, an agent who acts on your (principal) behalf while making large transactions must be legally authorized.

How does Power of Attorney work in California?

Only a principal at least 18 years old may execute a CALIFORNIA POWER OF ATTORNEY and must be legally viable. Signatories required for all TYPES OF POWER OF ATTORNEY are the principal, a notary, or two witnesses. A power of attorney must be certified before it can be registered with the county recorder if it grants the agent the authority to undertake property transactions on your behalf.

It is also important to note that a power of attorney cannot have the agent or anyone within your healthcare parameters named as a witness.

Nursing Home Resident

Additionally, if you are a nursing home resident, you will also need to have a patient form signed by an advocate, which becomes legally binding after being signed; therefore, it would be a good idea to put it somewhere secure and provide your representative with a copy. Also, in cases of a MEDICAL POWER OF ATTORNEY, present a copy to your doctor, after which you can rest assured an agent in your absence can manage your affairs.

How do I choose power of attorney?

Must-Have Trust

Finding someone you can trust to act as your power of attorney is crucial; hence you should only delegate your interests to someone you have full confidence in, as making a decision too slowly or incorrectly could have dire consequences.

They Must Live Close to You

The essential quality of a power of attorney is proximity; you never know when you’ll need their assistance, so they must live nearby. If they don’t live close by, they may not be able to help you when emergencies arise; therefore, it would help to choose an agent who is conveniently located close to your home or office.

Should be Assertive

A power of attorney should take uninfluenced action, for instance, in situations where your loved one gives conflicting advice contrary to your interests. If your power of attorney is competent, they will be able to stand firm despite pressure from your relatives and can’t let the opinions of others sway them.

Well informed

It would help if you thought about whether the person you’re appointing power of attorney has the intelligence and financial knowledge to handle your properties and make timely medical decisions. Someone could have your best interests at heart yet lack the necessary experience or knowledge to manage your finances effectively. Make sure the person you appoint as your power of attorney understands financial matters to the extent necessary.

What are the types of Power of Attorney?

A durable power of attorney

Suppose you have a durable power of attorney in place. In that case, your agent can continue making decisions and acting on your behalf even if you become incapacitated. To be on the safe side in a situation where you won’t be able to make decisions for yourself, a durable power of attorney is a good idea if you’re utilizing it for estate planning. The presumption of the CALIFORNIA POWER OF ATTORNEY regulations court is that once executed, a power of attorney is durable unless you revoke it.

Non-durable power of attorney

If you become incapacitated while using a non-durable power of attorney, your agent’s authority to act will expire. Even if non-durable power of attorney isn’t adequate for estate planning, it may be beneficial in other circumstances.

Springing power of attorney

Under the terms of a springing power of attorney, your agent will only be able to exercise their authority if a particular condition is met. The most common stipulation for estate planning is incapacity due to illness or injury. Your agent’s authority sets into action when these terms are met. Until then, your agent lacks the right to act legally on your behalf, and you remain the sole decision-maker for your business.

Springing power of attorney can be helpful if you own a business and plan to make a business trip abroad; for instance, you can select a trusted agent to run things while you’re away.

Medical Power of Attorney

You can use a medical power of attorney for both long-term and emergencies. A power of attorney serves as springing on emergencies. The MEDICAL POWER OF ATTORNEY cannot be used when the principal is of good health and may expire when they recover from sickness. The principal can appoint different agents for different types of attorneys. Medical decisions within the agent’s jurisdiction include:

· Prescriptions

· Hospitalization

· Surgery approval

· Long-term care

· Healthcare providers

Financial Power of Attorney

The FINANCIAL POWER OF ATTORNEY document grants authority to an agent to manage the principal’s financial affairs, including their assets, money, and investments, which means that the agent can represent what the principal wants to do with the money or property. The scope of the agent’s authority includes:

· Managing bank accounts

· Buying and selling property

· Paying taxes

· Credit card transactions

· Paying bills

Can power of attorney sell a property before death?

The right to sell property isn’t included in all powers of attorney. First, check to see if the power of attorney you plan to use has provisions for dealing with real estate. You must prepare, notarize, and record a limited power of attorney for the transaction before you may move forward with selling a property under the authority of a power of attorney.

A sale is considered unlawful if conducted for personal gain and without a principal’s approval. Suppose your power of attorney provides a legal sale of the property. In that case, YOU CAN SELL A PROPERTY BEFORE DEATH, provided you partner with a real estate agent. To ensure a power of attorney is respected, your agent must sign documents and coordinate with you and the financial advisor.

When is selling property before death considered illegal?

Forged documents

Falsifying legal documents, such as financial records or a principal’s signature, is considered forgery and a form of abuse of power of attorney, making it illegal and punishable by law.

Impersonation

If the agent didn’t disclose some information about the transfer or if the agent pretended to be the owner when signing documents at the Real Estate Agencies, the transfer may be invalid.

Misuse of Power of Attorney

Ordinarily, principals grant power of attorney to close friends and relatives. Possibilities of abuse of such Powers of Attorney exist whenever the person holding the Poa takes actions contrary to the principal’s interest.

How can I prevent the illegal sale of a property before death?

First, you can file a civil lawsuit asking the court to prevent the party from selling or transferring the property. In cases where the land has already been sold, you can consider proclamation and seizure, where the court may rule in your favor and give you back custody of the property. Additionally, if the property entails joint ownership, a sale may be void if you did not express your will to sell your share.

A request is made to the land registry office to cancel the registration of the conveyance deed that would otherwise transfer the property in question. If any discrepancies are found in the land records, you can ask the relevant tax authorities to make the necessary corrections. Alerting them of the discrepancies can help prevent fraud.

Take Away

If you choose a long-term power of attorney, you will have a plan for reliable management of your financial affairs in case you become incapacitated. Consult an estate attorney before making decisions on matters concerning your properties. Call Hess-Verdon today at 949-706-7300.

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Hess-Verdon & Associates, PLC
620 Newport Center Drive Suite 1400
Newport Beach, California, 92660
Office: (949) 706-7300 
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Copyright © 2022 Hess-Verdon, PLC. All rights reserved. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. The verdicts and settlements listed on this site are intended to be representative of cases handled by Hess-Verdon & Associates, PLC. These listings are not a guarantee or prediction of the outcome of any other claims. The information contained on this website is not tax or legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. For current tax or legal advice, please consult with an accountant or an attorney.

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620 Newport Center Drive Suite 1400
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Office: (949) 706-7300 
Toll Free: (888) 318-4430

Copyright © 2022 Hess-Verdon, PLC. All rights reserved. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. The verdicts and settlements listed on this site are intended to be representative of cases handled by Hess-Verdon & Associates, PLC. These listings are not a guarantee or prediction of the outcome of any other claims. The information contained on this website is not tax or legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. For current tax or legal advice, please consult with an accountant or an attorney.

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