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I have durable POA for Mom including when not able to manage her affairs. I need to sell her house for her what else do I need?

Littleton, CO |

The durable power of attorney is established in her will. The proceeds of the house are for her care. She is living with family in another state now, but needs day care assistance.

Attorney Answers 2


Double-check your documents, and consider consulting with the attorney that prepared them for your mother, or with an estate planning attorney near you. Powers of Attorney are not the same as Wills, and you wouldn't find them in the same document.

I admit my practice is exclusive to Texas, but I think you'll find it universally true that a Will is revocable until death. It can be revoked or modified virtually any time by the individual until they die. The document becomes legally effective only when it is offered and admitted to probate. At that point, there's no use for an agent under a Power of Attorney. At that point, the personal representative of the estate (typically known as the executor) becomes responsible for handling things.

Wills and Powers of Attorney are often prepared at the same time, and so you may be a bit confused about the documents actually being separate. Take a good look at the documents themselves and take a moment to visit with a professional regarding any authority and/or responsibility you might currently have.

This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship.

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I agree with Atty. Thomas. Chances are you have a Will - which devises mom's property at death - and a Springing, Durable Power of attorney, which allows you to manage her affairs once a doctor or court determines she is incapable of doing it herself, depending on how it's written. If you want to sell the house, and the DPOA allows that, you have to ensure that the condition for the document taking effect is met. If you can't, your only option is to have her do it herself or have her sign another power of attorney that's in effect from the start.

Once you have a valid, functioning POA, you can use it to do anything that your mother could, so long as the document allows it. This includes the right to sell property, even where there are directions about the property in the Will.

If you take all of the documents to an attorney, he or she will very quickly be able to tell you what documents you have, and what steps need to be taken for you to be able to sell the house.

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