Power of Attorney Sale – Boulder Real Estate Agent
It is not uncommon as a real estate agent in Boulder to be asked the following (paraphrased) question: how does the process work in Colorado when using a power of attorney to sell real estate owned in the name of an incapacitated mother, father, grandmother, grandfather, or anyone else for whom one is acting as an agent under a general (i.e., financial) power of attorney? While the specifics of the process in any individual circumstance can only be answered following research and consultation with an attorney, the following is some general information that may be helpful if you are dealing with such a situation.
In Colorado there are two broad types of powers of attorney that can be used to sell real estate. The first is a specific power of attorney (i.e., a power of attorney for a limited purpose), allowing the sale of a specific parcel of real estate. The second is a general power of attorney. A general power of attorney is usually effective upon its execution by the principal (the person creating the power), making the power created a “standing power.” Occasionally, a general power of attorney will be effective at some later date or upon the occurrence of some specific event (e.g., incapacity as agreed to by two physicians), making the power created a “springing power.” By default, a general power of attorney executed on or after January 1, 2010 is “durable,” meaning it continues to be effective even when the principal is incapacitated, unless the instrument expressly provides that it is terminated by the incapacity of the principal. Colorado Revised Statutes § 15-14-704. In Colorado a power of attorney terminates, among other terminating events, when the principal dies or if the principal revokes the power of attorney.
Once an agent under a power of attorney has accepted appointment such agent is obligated to, among other things, “Act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest.” C.R.S. § 15-14-714(1)(a). As a general rule, so long as the principal still has some level of capacity and the ability to express his or her wishes, an agent would be well advised to consult with the principal prior to making decisions regarding the sale of real estate. Agents are also required to “Act only within the scope of authority granted in the power of attorney.” C.R.S. § 15-14-714(1)(c). Most general powers of attorney in Colorado, by broadly granting the agent with the authority to do all acts that the principal could do, or by reference to §§ 15-14-727 through 15-14-739, allow the sale or disposal of real estate for the benefit of the principal. Occasionally, even in a general power of attorney, the principal may not grant, or may specifically prohibit, the agent from having any authority over the principal’s real property. In such an event the agent would be prohibited from selling the principal’s real estate unless the authority was granted through another document.
Assuming the power of attorney was validly executed, the power of attorney grants the agent authority to sell real estate on behalf of the principal, the agent is acting in good faith, the sale of real property is in accordance with the principal’s reasonable expectations to the extent they are actually known or the sale of the property is in the principal’s best interest, and all other requirements are met then the process moves forward as it usually does with any other listing and sale. A listing agent must be selected and the listing documents must be executed, the property must be listed on the local multiple listing service (MLS), offers must be reviewed, if an offer is accepted the property will be evaluated by the prospective buyer through the due diligence period, and assuming all issues are resolved, the sale will close, with the agent under the power of attorney signing on behalf of the principal. The rules related to powers of attorney can be difficult to understand, which is why it is always best to seek legal counsel. However, when going through the process of selling real estate in Boulder County or anywhere in Colorado as an agent under a general power of attorney it is essential to have a knowledgeable, experienced real estate agent on your side to help guide you through the non-legal aspects of the process and work alongside your attorney to resolve any issues, if/when necessary. If you are looking into selling real estate in Boulder, Lafayette, Louisville, Longmont, Erie, Superior, Nederland or anywhere else in Boulder County, as an agent under a power of attorney, call your experienced, knowledgeable Boulder real estate broker today.
If you are looking for a Boulder real estate agent with a results oriented approach tailored to your specific needs, contact Royal Arch Real Estate. We are knowledgeable and experienced brokers who always have your best interests at the forefront of our minds, whether you are buying or selling a home, vacant land or a new construction.