Can a power of attorney sell a parent's house in Oklahoma?

Mom is in assisted living now, or Dad's memory is slipping, and the house sits empty. You hold a power of attorney. Can you sell the house for them?

Often you can. But a few things have to line up first, and one of them catches families by surprise: the power of attorney stops working the moment your parent dies. This guide is part of our guides to planning ahead for the family home. We're not attorneys, and an attorney should read your parent's document before you sign anything with it.

What a power of attorney lets you do

A power of attorney is a document your parent signs naming someone, the agent, to handle their affairs. In Oklahoma, the Uniform Power of Attorney Act governs financial powers of attorney signed on or after November 1, 2021 (58 O.S. §3001 and following). A health care power of attorney is a separate document and doesn't cover the house.

Three questions decide whether you can sell:

1. Does it cover real estate? A power of attorney that grants general authority over real property, or over "all acts," usually includes selling the house. One limited to banking or a single account does not.
2. Is it durable? A durable power of attorney keeps working after your parent loses capacity. Under the current Act, a power of attorney is durable unless it says otherwise. Older documents are different. Under the law before November 2021, a power of attorney generally needed specific words to survive incapacity. An older document without them may have stopped working when your parent could no longer manage their affairs.
3. Is it in effect? Some powers of attorney "spring" into effect only when a doctor certifies incapacity. If yours does, you'll need that letter before anyone will accept it.

A power of attorney your parent revoked, or one a court has replaced with a guardianship, can't be used to sell.

The steps before you can list

Read the document closely. Note the date, the powers it grants, and whether it names a co-agent or a successor. If two agents must act together, both may need to sign.

Record it with the county clerk. In Oklahoma, a deed signed by an agent can't be recorded until the power of attorney itself has been recorded in the same county. In Tulsa County, that's the Tulsa County Clerk. Do it early. A title company will ask for it.

Expect questions from the title company. Title companies and lenders often ask the agent to sign a certification that the parent is living and the power hasn't been revoked. Oklahoma law limits how long a third party can sit on an acknowledged power of attorney, and how it can refuse one. Some still ask for their own form or an attorney's letter. Allow time for it.

Check for a spouse. If your parent is married, the spouse may have to sign the deed because the house is their homestead, even if only your parent's name is on the title.

Look at what's owed. The mortgage, any reverse mortgage, liens, and unpaid taxes all get paid at closing. A reverse mortgage usually comes due when the borrower moves out for good, not only at death. Our guide to paying for care in Oklahoma covers the timing of a sale around a parent's move.

Your duties as the agent

Being the agent is a job with legal duties. Under the Act, you must act in good faith, within the authority the document gives you, and in your parent's best interest. In plain terms:

• The money is your parent's. Sale proceeds go to your parent's account, not yours and not a joint one you share.
• Get a fair price. An appraisal or a Realtor's opinion of value shows you acted carefully. A written comparison of listing against a direct as-is sale helps too. We put that on one free page.
• Keep records. Save the listing, the offers, the closing statement, and where the money went.
• Don't sell to yourself on the quiet. A sale to the agent, the agent's spouse, or the agent's children is a conflict of interest. It can be undone or lead to a lawsuit from your siblings. If a family member wants the house, have an attorney set it up with an independent value.

Some acts need specific wording in the power of attorney before an agent can do them at all. Making gifts and changing who inherits are two of them. That's why an agent generally can't sign a transfer-on-death deed for a parent. An Oklahoma appeals court has held such a deed invalid. Our guide to transfer-on-death deeds covers what that means for the house.

SoonerCare, taxes, and timing

SoonerCare. While your parent owns the house, it may not count against SoonerCare eligibility. Once it sells, the money does. Giving the house away, or selling it below value, can bring a penalty under the look-back, generally five years. Our guide to SoonerCare estate recovery explains the state's claim on the house. Talk to an elder law attorney before you list.

Taxes. A parent who sells their own home may be able to exclude much of the gain, and a parent who moved into a care facility may still qualify. If the house is kept until death instead, heirs usually get a stepped-up value. Which is better depends on your parent's numbers. Ask a CPA.

Timing. Selling while your parent is living can pay for care and stop the costs of an empty house. Waiting may make sense if the house is protected and nobody needs the money. There's no single right answer.

If there's no power of attorney

If your parent can still understand what they're signing, the simplest answer is for them to sign the deed themselves, or to sign a power of attorney now with an attorney's help.

If they can't, the family may need a guardianship. A court appoints a guardian, and in most cases the guardian needs the court's approval before selling the house. Special rules apply to a homestead. A guardianship takes time and costs money, which is one reason attorneys urge families to sign a power of attorney early.

When your parent dies

The power of attorney ends at death. A sale that hasn't closed can't close on the agent's signature after that. From then on the house goes where the will, a transfer-on-death deed, or Oklahoma law sends it. If there's a probate, the personal representative signs, often with the court's approval. Our guide to probate in Oklahoma walks through it.

Tell the title company right away if your parent dies before closing, and stop using the power of attorney.

Where we fit

We don't write powers of attorney or decide who has authority to sign. The attorney does. Our part is the house: getting it ready, coordinating a notary for a parent in a care facility, and closing on the schedule the family needs.

We helped a family sell a house while one of the heirs lived in a care facility. Read how that went.

If you sell, Bucky can list the house as a licensed Oklahoma Realtor through Waypoint Realty, or KRE Group can make a direct as-is offer. You can always list with any agent or take other offers. Call or text (918) 317-2874 to talk it through.