Legal Question in Real Estate Law in California

In general a power of attorney to sell real property means that one person (the principal) has given another person (the attorney in fact) authorization to act in all respects in the place of the principal in the sale of real property. A "durable" power of attorney is ususally used in the health care context because in the absence of provisions making it a "durable" PoA, a PoA expires upon the death or incapacity of the principal. Since the whole point of a health care PoA is to give someone authority to make medical decisions for you, it wouldn't make much sense if it were not durable. When it comes to selling real property, however, it would be highly unusual to make it durable, particularly since normally a PoA to sell real property would be further limited in time, and limited in scope to one or more specified properties.

It means that the holder of the power of attorney has the ability and authority to sell the real property of the person who granted the power of attorney. The durable part means the power of attorney survives incapacitation of the person granting the power of attorney, rather than being automatically revoked.

There is nothing in the law limiting durable powers of attorney to health-care matters. Durable powers of attorney are authorized, defined and limited by Probate Code sections 4124 et seq.; 4206, 4304 and 4305 as well as other laws governing powers or attorney in general.

Although perhaps unusual, there are valid reasons why a durable power of attorney to sell real estate might be executed (and used). Title and escrow companies and financial institutions that are asked to honor powers of attorney typically will make some inquiry into their validity (both facial compliance with the law and the underlying circumstances) before acting upon them.

A power of attorney survives the death of the principal while the attorney-in-fact and any third party do not have knowledge of the death of the principal and act in good faith assuming the power of attorney is still valid.