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Life Care Planning Reed: Transfer of real estate through a statutory durable power of attorney

Sandra W. Reed
Sandra Reed

Katherine P. signed a Statutory Durable Power of Attorney (SDPOA) naming her daughter, Jennifer, as her agent to handle her financial affairs. The SDPOA gave Jennifer the power to deal with any real estate transaction, including the right to sell. Katherine, being a private person, decided, since it was not required that the power of attorney be filed when it was executed, she would not file it in the county records. However, she did provide Katherine with a copy.

Two years later, Katherine was admitted to a memory care unit of a nursing home with a diagnosis of Alzheimer’s. Jennifer placed her mother’s home on the market and a sale contract was negotiated three months later.

Can real estate be transferred via a SDPOA?

Although filing the SDPOA upon signing is not required, to fulfill the requirements of a sale of real estate in Texas under the Texas Property Code §5.021 and Texas Estates Code §751.021, the SDPOA must be recorded in the records of the county in which the property resides within 30 days after the deed transferring the property to the buyer is recorded.

When Jennifer produced the copy of the SDPOA the title company demanded an original to complete the sale. As expected, Katherine had no memory of where she had placed the original SDPOA. Jennifer knew her mother’s will was filed in her safe deposit box at her bank. Fortunately, Jennifer was authorized to access the box and possessed a key to the box. Jennifer believed she would find the original of the SDPOA there. She didn’t.

Next, Jennifer ransacked her mother’s house searching for the needed document. It was nowhere to be found.

The lesson learned

Although not all title companies will require that the original SDPOA be presented, the lesson learned here is for principals to make the location of original SDPOA available to the agent in case a title company or another other entity requires it.

Sandra W. Reed practices Elder Law in Somervell County, handling probating of estates, drafting of wills, trusts, powers of attorney and deeds as well as estate and Medicaid planning.  She lives in beautiful Chalk Mountain and can be reached at (254) 797-0211; (817) 946-2809 or at sreed@kattenbenson.com.