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Son granted Durable Power of Attorney to handle parents’ affairs

By ERIC FEICHTHALER - Real Estate Law | Jul 8, 2021

Eric Feichthaler

Dear Mr. Feichthaler:

My parents own a home in Cape Coral, and they live in Ohio. They had their Ohio attorney prepare a Durable Power of Attorney which provides me authority to sell the house on their behalf. Do you foresee any issues in using this document to handle everything for them?

— Douglas S.

Dear Douglas:

An important part of one’s estate plan is to execute a Durable Power of Attorney, empowering someone they trust to take care of financial affairs if the person is unable to do so on their own. Although it is always ideal to have the actual owner sign documents, there are many instances where the Durable Power of Attorney will be useful, and this would be one of them. Typically, a power of attorney will empower you to sign the contract and all closing documents.

One item to consider is that, as a Florida attorney, I cannot provide an opinion on the validity of an out-of-state power of attorney. It is likely that the firm or title company closing the transaction will require a letter from a licensed attorney in Ohio stating that the power of attorney is valid for the purpose of conveying property. Additionally, the original power of attorney document, or a certified copy, will also be needed to record along with the deed.

So, if you are contemplating a sale of the house (particularly a quick one), I would recommend obtaining that opinion letter from the Ohio attorney as soon as possible. This letter will state that the attorney-in-fact (you) has authority to sign the closing documents, contract to sell the property and that state law provides no restrictions on you selling it for them.

I wish you the best of luck with a great price on the sale.

Eric P. Feichthaler has lived in Cape Coral for over 33 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 20 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

Mr. Feichthaler can be reached at eric@capecoralattorney.com, or (239) 542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.