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About Durable Power Of Attorney: Can my son sell the house when I am abroad (absent) and NOT for medical reasons?

Palo Alto, CA |

I looked at several Durable POA forms - each states only _medical_ reasons.
But now I found http://www.avvo.com/legal-guides/ugc/powers-of-attorney-2
where it says,
"This document may be used when a person becomes mentally or physically incapacitated, or when they are absent"

So should I change the standard phrasing in Durable POA form to have it based on absence and not medical reasons?

Thanks,
Paul
P.S. I even filled out one - at it's ONLY medical at the very top:
http://winrus.com/p/power/DPOAFPaulGorodyansky.pdf

Attorney Answers 4


  1. Best answer

    There are 2 different POA types - one for medical matters and a separate one for financial matters. In addition, the financial POA can be set up to handle transactions while you have mental capacity to do things yourself or when you are incapacitated.

    Most title companies have very specific language that they want to see in a power of attorney that permits someone else to sell your real estate. Most forms you find on the web or in an office supplies store lack that language.

    As the other attorneys have said, you need competent legal advice to make sure that the form will work when you need it to.

    My office is in Palo Alto. We'd be happy to assist you.

    The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.


  2. You should consult an attorney in the state where you live so that your wishes are carried out properly. Some states have powers of attorney that go into effect only when a person is incapacitate; all states have powers of attorney that go into effect immeidately; all states can have limited powers of attorney for specific purposes. I do not recommend any forms from the Internet because they may not be appropriate for the issue you want to resolve. The Agent (holder of the power) is a fiduciary ahd should ONLY act in the grantor's best intersts. But, most attorneys have seen abuses of powers and, therefore, one must be careful about what is included in the power of attorney and who the grantor appoints as his or her agent.


  3. Do it yourself power of attorney is a really, really, really bad idea. {Oh and did I mention how really bad an idea it is?}

    A power of attorney can be an extremely powerful instrument. For instance, if agent under your POA sells your home to innocent third parties, you may be unable to reverse the sale even if it is against your wishes. While you may have a claim against the agent, that would be of little consolation if you lose your home in the process. A POA may be very important to minimize tax and protect assets if you need long term care, but unless the POA satisfies rigorous state requirements, it may not do the job. It is difficult to impossible for a person without legal training and expertise in trusts and estates law to recognize all the potential pitfalls and design a POA that meets the principal's needs. It is very much worth the legal fees to have instruments such as powers of attorney and wills prepared by a lawyer. Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (L.L.M.) in Taxation from N.Y.U. School of Law.


  4. You should meet with an attorney and explain exactly what you want, under what conditions, and set a time period for it to be effective.
    It can be very restrictive to the sale of certain real estate only.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

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