Selling a Parent’s Home With a Power of Attorney in Ontario

Yes, a power of attorney can sell property in Ontario. An adult child named as attorney in a valid continuing power of attorney for property can sell a parent’s home, as long as the document is in effect, does not restrict a sale, and the sale is in the parent’s interest. The buyer’s lawyer will ask to see the power of attorney, and the sale proceeds remain the parent’s money. If there is no continuing power of attorney, the family has to obtain a guardianship first, which takes considerably longer.

Most families reach this point because a parent is moving into long-term care and the home needs to fund it. This guide covers what to check before you list, what the law expects of you as attorney, and how the sale works from listing to closing.

Check That the Power of Attorney Can Be Used

Before anyone calls a real estate agent, read the document itself. Remember that there are two kinds of power of attorney in Ontario: a power of attorney for property, which covers money and assets and can be used to sell a house, and a power of attorney for personal care, which covers health, medical and care decisions and cannot. Four questions decide whether the document can be used for a sale.

• Is it a power of attorney for property? Only a power of attorney for property can be used to sell a home. If the document only covers personal care, it cannot be used for a sale.
• Was it properly signed? It needs two witnesses. Neither can be the attorney, the attorney’s spouse or partner, the parent’s spouse or partner, or the parent’s child.
• When can it be used? It is not enough for the document to say it is continuing. Check when the power can be used. Some documents can be used at any time, including during any incapacity. Others can only be used once the parent becomes incapable, and say how that is decided. If yours is one of these, you will need the proof it describes, such as a capacity assessor’s finding or a letter from a named doctor.
• Does it restrict a sale? A parent can limit what the attorney may do, including barring the sale of the family home. Read every condition before you list. And as long as your parent is mentally capable, they make their own decisions, including whether to sell.

If your parent is still capable, the decision to sell is theirs, and the simplest route is often for them to sign the sale documents themselves, with you supporting them. Even where you have authority to act, you are expected to involve your parent in decisions as far as they are able to take part.

When There Is More Than One Attorney

Many parents name two children. How they are named decides who signs.

• Jointly. Both attorneys must agree and both must sign the listing agreement, the offer and the closing documents. If the document names two attorneys and does not say otherwise, assume they must act jointly.
• Jointly and severally. Either attorney can sign alone. Even so, the sale goes far more smoothly when both agree on the price and the timing, and keep a written record that they did.

If joint attorneys disagree about selling, the sale stalls. That disagreement is worth resolving, with legal advice if needed, before the property goes on the market rather than after an offer arrives.

Your Duties as Attorney

An attorney for property is a fiduciary. Under Ontario’s Substitute Decisions Act, 1992, you must act diligently, honestly, with integrity and in good faith, for your parent’s benefit. In practical terms, that means:

• Sell for a fair price. Use a real estate agent, consider a professional appraisal, and be ready to show why the price was reasonable.
• Keep the money separate. The proceeds belong to your parent. They go into your parent’s account, never yours, and are spent on your parent’s needs first, including long-term care.
• Keep accounts. Ontario requires attorneys to keep detailed records of every transaction under O. Reg. 100/96. Keep the listing agreement, the accepted offer, the statement of adjustments and the closing report from your lawyer. You may be asked to account to family members or a court.
• Avoid conflicts. If you, your spouse or another relative wants to buy the home, get legal advice before going any further. A sale to the attorney or their family is the transaction most likely to be challenged later.

If the Will Leaves the Home to Someone

This is the question families most often overlook. Suppose your mother’s will leaves the house to your brother, and you are her attorney.

The Substitute Decisions Act deals with it directly. As attorney, you must make reasonable efforts to find out whether your parent has a will and what it says. You must not sell property that the will gives to a specific person unless the sale is necessary to carry out your duties, such as paying for your parent’s care. Your first responsibility is to your parent and their needs, but you also have a duty to respect their wishes as set out in the will, so that those wishes can be fulfilled when the will comes into effect.

So the sale can proceed when it is genuinely needed, but the reasons for it should be documented. A short conversation with a lawyer before listing costs far less than a family dispute later.

What the Buyer’s Lawyer and the Land Registry Ask For

A sale by an attorney closes through Ontario’s electronic land registration system like any other sale, with a few additions.

• The original power of attorney. Your lawyer will need to see the original document to verify it. The buyer’s lawyer will usually accept a copy or a notarial copy.
• Your lawyer’s statements. Your lawyer makes law statements in the electronic transfer confirming that the power of attorney is still valid, has not been revoked, and that you are acting within its scope.
• Proof it is in effect. If the document only takes effect on incapacity, expect the buyer’s lawyer and the title insurer to ask for the proof it requires.
• Signing on your parent’s behalf. The listing agreement, the offer and the closing documents are addressed to your parent, and you sign them on your parent’s behalf as their attorney.

One timing risk matters above all. A power of attorney ends when the person who gave it dies. If your parent dies before closing, you can no longer complete the sale as attorney. The estate trustee named in the will takes over, and the estate may need a Certificate of Appointment before it can close. Our guide to transferring a property after someone dies in Ontario explains that process.

If There Is No Power of Attorney

Without a continuing power of attorney for property, nobody in the family can sign for an incapable parent, not even a spouse. There are two routes, and both take time.

• Statutory guardianship. If a capacity assessor finds the parent incapable of managing property, the Office of the Public Guardian and Trustee becomes the statutory guardian. A spouse or relative can then apply to replace it, with a management plan for the parent’s property.
• Court-appointed guardianship. A family member applies to the Superior Court of Justice to be appointed guardian of property. The court must be satisfied that the parent is incapable and that no less restrictive option will meet the need.

Either way, the home cannot be sold until a guardian is in place, and a family needing money for care is left waiting. That is the strongest argument for every parent to sign a continuing power of attorney for property while they are well. It is a short document, it costs a fraction of a guardianship, and it decides who acts for them. Read more about powers of attorney and wills, which are usually prepared together.

A Typical Sale, Step by Step

Here is how a sale by an attorney usually runs, assuming the power of attorney is in effect and the family agrees.

1. Before listing. Gather the power of attorney, the will if you can locate it, the latest mortgage and property tax statements, and the home insurance policy. Speak to a lawyer to confirm the document can be used and whether the will affects the sale. Confirm any co-attorney agrees.
2. Insurance and the empty home. Tell the insurer if your parent has moved out. Many policies change once a home is vacant for a set period.
3. Listing. Sign the listing agreement on your parent’s behalf as their attorney. Tell the agent you are selling under a power of attorney so the buyer’s side knows to expect it.
4. Accepting an offer. Sign the offer on your parent’s behalf as their attorney, and keep a note of why the price was fair. Send the accepted offer and the power of attorney to your lawyer straight away.
5. Before closing. Your lawyer orders the mortgage payout statement, answers the buyer’s lawyer’s questions about the power of attorney, prepares the statement of adjustments, and meets you to sign the closing documents on your parent’s behalf.
6. Closing day. The transfer is registered, the mortgage is paid out, and the net proceeds go into your parent’s account.
7. After closing. File the closing report with your attorney accounts, and speak to your parent’s accountant about reporting the sale on their tax return.

The closing costs are the same as on any other sale: commission, the mortgage payout and any penalty, legal fees and a short list of disbursements. Our guide to closing costs for sellers in Ontario sets them out with a worked example.

Common Questions

Can a Power of Attorney Sell Property in Ontario?

Yes. An attorney under a valid continuing power of attorney for property can sell real estate, including the parent’s home, if the document is in effect and does not restrict a sale. The attorney must act in the parent’s interest, sell for a fair price and keep the proceeds in the parent’s name.

Can I Sell My Parent’s House to Pay for Long-Term Care?

Yes, if you hold a continuing power of attorney for property that is in effect. Paying for a parent’s care is one of the clearest reasons an attorney may sell. Keep records showing why the sale was needed and that the price was fair.

Can a Power of Attorney Sell a House Left to Someone in the Will?

Only if the sale is necessary to carry out the attorney’s duties, such as paying for the parent’s care. The attorney should document why the sale was needed.

Do Both Attorneys Have to Sign to Sell the House?

If they are appointed jointly, yes. If the document appoints them jointly and severally, either can sign alone. If it names two attorneys without saying which, assume both must sign and check with a lawyer.

What Happens If My Parent Dies Before the Sale Closes?

The power of attorney ends on death, so the attorney can no longer close the sale. The estate trustee named in the will takes over, and the estate may need a Certificate of Appointment of Estate Trustee before closing.

How Do I Sell a Parent’s House Without a Power of Attorney?

You need to become their guardian of property first, either by replacing the Office of the Public Guardian and Trustee as statutory guardian or through a court application. The home cannot be sold until a guardian is appointed.

Get It Right the First Time

Selling a parent’s home under a power of attorney is not difficult when the document is clear and the family agrees. It becomes slow and expensive when the document is unclear, the will points the other way, or a co-attorney objects halfway through.

Wannes Law handles both sides of this from one office: the sale of the home and the power of attorney behind it. Get an instant quote for the sale, or book a free consultation to talk through the power of attorney first.

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This article provides general information about Ontario law and does not constitute legal advice. Whether a power of attorney can be used for a sale depends on its wording and the circumstances. Speak to a lawyer before listing a property under a power of attorney.

Sources: Substitute Decisions Act, 1992, Government of Ontario · O. Reg. 100/96, Accounts and Records of Attorneys and Guardians · A Guide to the Substitute Decisions Act, Government of Ontario · Providing Property Guardianship Services, Office of the Public Guardian and Trustee