Can an Attorney Sell a Parent's Home Under a Power of Attorney in BC?

Your parent can no longer manage their own affairs, and the house may be the main asset that can pay for care. Selling it is one of the biggest steps an attorney can take, so it helps to know what the document allows and which rules apply before you list the property.

This article explains the general British Columbia rules for an attorney selling a home under an enduring power of attorney. It covers the Land Title Office signing rules, the duties that apply, and what to watch for if a family member wants to buy. Every situation turns on the exact wording of the document and the title, so a lawyer should confirm the details.

This article covers the law of British Columbia.

Does the power of attorney cover selling property?

An adult can authorize an attorney to make decisions about their financial affairs, and can give the attorney general powers or only specific ones. Start by reading the document to see which it is. A document limited to paying bills or running a bank account may not reach real estate.

The document also has to be in effect. It takes effect on the latest of three things: when the adult and an attorney have both signed it, any effective date it states, or when a triggering event it names, such as incapacity, has been confirmed. If it only starts on incapacity, it must say how that is to be confirmed and by whom, for example by a named doctor's letter.

• Is the document an enduring power of attorney, so that it keeps working after incapacity?
• Does it give general powers, or only specific ones that may not include real estate?
• Has any triggering event, such as incapacity, been confirmed in the way the document requires?

Land Title Office: extra signing rules

If the enduring power of attorney is to be used for Land Title Act purposes, it must also be executed and witnessed as the Land Title Act requires. That is a separate layer on top of the general rules. A document that works for a bank may still fall short of what the Land Title Office needs.

The general rules are that the document is in writing and signed and dated by the adult in front of 2 witnesses, who both sign in front of the adult. One witness is enough if that witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia. Anyone named as attorney cannot witness, and neither can the attorney's spouse, child or parent.

Duties that apply to a sale

Having the power to sell does not mean you can sell on any terms. These duties apply to every decision, including a sale of the home:

• Act honestly and in good faith, use the care, diligence and skill of a reasonably prudent person, and act within the authority given.
• Act in your parent's best interests, taking into account their current wishes, known beliefs and values, and any directions in the document.
• Where reasonable, put their personal care and health care needs first and foster their independence.
• Do not dispose of property you know is the subject of a specific gift in their will.
• Invest the proceeds under the Trustee Act unless the document says otherwise.
• Keep their property separate from your own.

You must also keep records: a list of the adult's property and liabilities, accounts of what you do, and the invoices and bank statements needed for full accounts. Keep the sale documents and the valuation with them.

Conflicts and selling to yourself or family

The attorney's duties to act honestly, in good faith and in the adult's best interests do not switch off because the attorney, or a relative, wants to buy. A sale to the attorney can be hard to defend later, especially if the price looks low or the process was not open. Whether it is permitted depends on the document and the facts, and you should get legal advice before going ahead.

Other rules point the same way. An attorney must not be paid for acting unless the document expressly authorizes payment and sets the amount or rate. An attorney may be reimbursed from the adult's property for reasonable expenses properly incurred.

If your parent and you own the home jointly, the rule that the attorney keeps property separate does not apply to jointly owned property, unless the document says it does. That does not remove the duties above. Sensible protections include an independent valuation, an open listing, written reasons for the decision, and keeping other family members informed.

Concerns, disputes and next steps

Family members who think a sale is improper have options. Anyone with reason to believe an attorney is abusing or neglecting the adult, or is failing to follow the document or the attorney's duties, may report to the Public Guardian and Trustee. The Public Guardian and Trustee must promptly review a report and may investigate. It, or the person who reported, may apply to the BC Supreme Court, which can terminate all or part of the enduring power of attorney.

If you are the attorney and unsure about your powers, you may apply to the court for directions on their scope and on your duties.

• Read the document and confirm it covers real estate and is in effect.
• Ask the conveyancing lawyer or notary to check it against Land Title Act requirements.
• Check your parent's will, if you can lawfully see it, for a specific gift of the house.
• Get an independent valuation and keep every record.
• Put sale proceeds in an account kept separate from your own money.
• Get legal advice before any sale to yourself or a relative.

Frequently asked questions