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Using a Power of Attorney to Sell Real Estate

Posted by Sherry Rioux on September 9, 2008

Many years ago, my widowed mother executed two Power of Attorneys:  one for personal care and one for property.  It was one of the best things she could have done.

Five years ago, my Mom had a debilitating stroke that left her partially paralyzed and unable to speak.  As a result, her home had to be sold and I had to take over responsibility of all of her assets and personal care.  This was easily possible because of the existing and valid Power of Attorneys; without them, the Public Guardian and Trustee for the Province would have stepped in and taken over her affairs.  What a thought.

It’s becoming increasingly common to see properties listed for sale with the Seller being represented by an attorney given the power to handle the transaction.  As this is an area most REALTORS™ don’t have a great deal of training in, our real estate board recently held a training session led by local lawyer, Jason Cowan.

Jason explained that there are two categories of POAs; one for personal care and one for property.  With respect to property specifically, there are then two types:  one is a non-continuing POA which is limited and specific in purpose; for example if a seller was out of the country and unable to execute documents for a specific period of time.  The second type is a continuing POA which is most common.  It gives power to the named attorney (and we’re not talking about a lawyer here) to do anything on the persons behalf that they could do if they were capable except make a will.

In order to be legal, POAs must meet various requirements and among them, it must be signed by the person giving the attorney power, it must be dated and two adult, arms length witnesses be present and sign.

In respect to real estate transactions, Sellers who are acting under the Power of Attorney should make sure that any conditions in the document are met and that the POA is valid as they will be responsible for the actions they take.  Then they should provide an original or notarized copy of the document to their REALTOR™.

For buyers purchasing a property where the documents are executed by a POA on behalf of the property owner, it would be prudent to include a clause right in the agreement of purchase and sale having the POA warrant that the POA is indeed in full force and effect.

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When it’s time to buy or sell real estate in the Collingwood, Blue Mountain or Georgian Triangle area, contact Marg, an experienced and competent Broker who’s ready whenever you are!

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