Can an Attorney Sell My House Under a Power of Attorney in New Brunswick?

If you are looking after a parent's affairs, selling their home can feel like the natural next step, perhaps to pay for care. Whether you can actually do that depends on the power of attorney document, on whether your authority has begun, and on how you carry out the sale.

This article explains the general rules in New Brunswick for an attorney under an enduring power of attorney. It does not replace advice on your own situation, especially where a spouse lives in the home or family members disagree.

This article covers the law of New Brunswick.

What kind of document gives you the power

In New Brunswick, an enduring power of attorney is a document in which the grantor appoints an attorney for property and financial affairs, personal care, or both, and it continues even if the grantor later becomes incapable. Selling a house is a property matter, so you need to be appointed for property and financial affairs. An attorney who is appointed only for personal care has no basis to sell real estate.

The word attorney here does not mean a lawyer. It simply means the person the grantor chose to act for them.

When your authority starts

A property attorney may act right after the document is signed unless the document says otherwise, or only once the grantor's incapacity is established, depending on how the document is written. Read the wording closely. If it says you act only on incapacity, you cannot sell until that condition is met.

Where incapacity matters, it is determined by a person named in the document or, failing that, by an assessor, who is a licensed medical or nurse practitioner or a prescribed class. A person is presumed to have capacity unless it is determined otherwise.

The document itself must also be valid. It must be in writing, signed and dated, and an enduring power of attorney for property must be signed in front of a lawyer who gives a written statement confirming review and capacity.

Duties when you sell

An attorney must act honestly, in good faith, with reasonable care and within the authority given. Where the grantor lacks capacity, you decide by looking, in order, at their prior instructions, their current wishes, what they would likely decide, and then their best interests.

• Sell for the grantor's benefit, not for your own or another relative's convenience.
• Keep written records of how the decision was made and where the money went.
• Do not sell to yourself or a relative without getting legal advice first.
• Check that the document does not limit what you may do with property.

An attorney, the Public Trustee or an interested person may apply to court to give directions, terminate the authority or replace the attorney. If you are unsure whether a sale is proper, asking for directions is one route to consider with a lawyer.

Spouses, the family home and other limits

A spouse's rights in the matrimonial home can affect a sale, and the rules depend on the facts, such as who owns the home and whether the spouse lives there. Speak to a lawyer before listing a home where the grantor has a spouse.

Other things can override or end your authority. If a provision of an enduring power of attorney conflicts with a representation order made by the Court of King's Bench, the order prevails. Separation of spouses or common-law partners ends the authority of a spouse or partner attorney unless the document provides otherwise. Authority also ends if the grantor dies.

What to do next

A buyer's lawyer will generally want to be satisfied that you have authority to sign. Expect to be asked for the original power of attorney, evidence of when your authority began, and proof that the grantor is alive and still the owner. Exactly what is required varies, so let your own lawyer handle the requirements.

• Locate the signed power of attorney and read what it permits and when it starts.
• Confirm it covers property and financial affairs.
• If authority depends on incapacity, gather the assessment that establishes it.
• Find out whether a spouse lives in the home.
• Write down why the sale is in the grantor's interest.
• Get legal advice before signing any sale documents.

If the grantor has died, your authority as attorney has ended, and the estate is dealt with by the executor or administrator appointed by the Probate Court.

Frequently asked questions