If one became incapacitated, what would family members have to doin order to sell the home to pay for health costs?

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If one became incapacitated, what would family members have to doin order to sell the home to pay for health costs?

I am looking into transfer on death deeds. I read that if you become incapacitated a power of attorney won’t work. Would a durable power of attorney be able to sell the property if it is under a TOD deed?

Asked on February 17, 2018 under Real Estate Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

A durable power of attorney *would* work: a durable POA remains in effect even once the principal (person making it) becomes incapacitated  (its authority lapses if and when that person dies; once someone passes away, only a will controls the disposition of their property). So creating a durable POA will allow the sale by the agent or attorney-in-fact (those are the two terms for the person given the power; either term may be used) during the principal's incapacity.
A TOD only kicks in after death, IF the person still owns the property; it does not prevent the sale or other transfer of the property during the person's lifetime.


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