San Antonio Express-News MySA.com Copyright 2011, Paul Premack
December 12, 2011
How can wife
sell home when husband is disabled?
Dear Mr. Premack: My husband had a major stroke last month. He is
getting better in rehab but may be there for weeks more. We are joint on
all our bank accounts and I’m able to pay the bills but other issues are
coming up. I don’t think I can bring him home, and want us both to move to
assisted living. I want to sell the house, but am being told that I can’t
sell without his signature. He is still confused and is unable to sign his
name. Can I use the power of attorney for this? — M.E.
can cause serious legal problems when no advance plans are made. In Texas,
the signature of both spouses is required for many legal transactions, and
some transactions require a specific spouse – like your husband – to sign.
If one of you is incapacitated, the other can act as agent under the power
of attorney, but you must follow the correct protocols.
“sign for him” there is a specific process that any agent should always
use. The agent never signs the agent’s own name to a transaction. Rather,
the agent must sign the principal’s name. But just signing the principal’s
name is not legally adequate. The agent must always indicate that the
action is under authority of the power of attorney, and that the action is
on behalf of the principal.
Translating that, the agent 1) signs
the principal’s name, 2) underneath the signature, the agent prints the
statement “by X, agent”. If you are Jane Doe and your husband is Frank
Doe, you would sign “Frank Doe, by Jane Doe, Agent.” Instead of “agent”
you could also use “attorney in fact.” In any notarization that
accompanies a signature, the notary must include a statement similar to
“signed by Jane Doe as agent of Frank Doe, on behalf of Frank Doe.”
Failure to indicate that you are acting under authority of the power of
attorney very likely invalidates the transaction. Additionally, for any
transaction involving real property, the laws of Texas require that the
durable power of attorney be recorded in the real property records of the
county in which the transaction is taking place. It would be good practice
to refer expressly to the power of attorney in each document that you
sign, and once it is on record with the county to refer to the volume and
page in which it is recorded.
Be cautious about powers of
attorney. Under certain powers of attorney, the agent's powers become void
if the principal becomes disabled. You need a DURABLE power of attorney
that allows the agent to retain all powers even when the principal becomes
disabled. The durable power of attorney should also incorporate the
provisions of Chapter XII of the Texas Probate Code, part of which
empowers the agent to handle real estate transactions.
power of attorney does indeed incorporate the statutory provisions, then
you have authority to transfer title to the real estate. If it does not,
then older laws require that the power of attorney expressly describe the
real estate before you have legal authority over it.
that a title transfer does not remove ownership of the item’s value from
your husband. If you are paid $100,000 for the house, half ($50,000) is
still owned by him. In order to actually remove his ownership of that
value, the power of attorney must explicitly give you authority to make
gifts on his behalf (and the value of the gift must be within any limits
he specified in the power of attorney).
Disclaimer: This column answers a specific
legal question asked by an individual in Texas. The answer may or may
not match your individual situation. Be careful not to treat this
column as specific legal advice, as it may not meet your individual
needs. It may give you a solid basis for discussion with your own
You should consult with your personal
attorney before you take any action on this or any legal issue.
Also, please be aware that laws change, so this column is valid only
as of the date it was published. This communication does not create an
attorney-client relationship between the author and the reader.
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Paul Premack is Certified as an Elder Law
Attorney ( CELA ) by the National Elder Law Foundation as accredited by
the Texas Board of Legal Specialization and tthe ABA. He is licensed to pracice law in Texas.
Benjamin Premack holds a JD and a Masters Degree in International
Affairs, and is licensed to practice law in Washington State and in