The four people who can sign, and the people who cannot
Authority over property comes from one of a small number of places. Work down this list until one of them is true, and note that being further down it is more expensive and slower than being further up.
| Who | What makes it real | What it does not cover |
|---|---|---|
| The owner themselves | Capacity for this particular decision at the moment of signing | A diagnosis does not decide this and neither does the family. It is judged for the transaction in front of them. |
| An agent under a durable power of attorney | A document that survives incapacity and grants authority over real property, accepted by the title company and the recorder | A general power of attorney may not reach a conveyance. And the authority ends at the moment the principal dies, which surprises families mid-sale. |
| A trustee | The deed having actually been transferred into the trust, plus the powers the trust document gives | A trust naming the house that was never used to re-record the deed holds nothing and its trustee can sign nothing. |
| Somebody a court appointed over the estate | Letters or an order from the court, often plus specific court permission for this sale | Appointment over the person is not appointment over the money. The two are frequently separate offices. |
| A co-owner | Their own share, and only their own share | A co-owner cannot convey the other owners' interests, whatever the family has agreed between themselves. |
| The family decision-maker | Nothing | Being the one who does everything, holds the checkbook, or lives in the house confers no authority to convey it. Informal authority works for a surprising amount, which is what keeps this gap hidden until the day it matters. |
A power of attorney dies with the person who gave it. If the owner dies during a sale, the agent's authority ends that day and whoever is dealing with the estate has to take over. Say so to everybody involved rather than letting a closing proceed on a document that has stopped working.
After a death this is a different question with different answers, and Sahvelo covers it separately: whether probate is needed at all, what a trustee can do without a court, and what happens when the deed has been in a dead relative's name for years.
What the power of attorney has to say, and who has to accept it
Most families have a power of attorney and have never tested it on anything larger than a bank. A conveyance is a harder test, because three parties have to be satisfied rather than one: the title insurer, the buyer's lender, and the county that records the deed.
Read the document for these, in this order
- Is it durable? A power of attorney that does not survive the principal's incapacity is useless for exactly the situation you are in. The words are usually in the first paragraph.
- Does it grant authority over real property, in terms? Some statutory forms require real-property powers to be initialed or granted separately, and a general grant is not always enough for a conveyance.
- Does it grant the specific things a sale needs, such as signing a listing agreement, a deed and closing documents?
- Is it executed the way the state requires? States differ sharply here, and a document valid where it was signed may still be questioned where the property is.
- Does the property's state or county require the power of attorney itself to be recorded before a deed signed under it can be? Ask the recorder, not the internet.
- Does it say anything about gifts or transfers to the agent themselves? An agent selling the house to their own family is a conflict a title company will look at closely.
One thing an agent generally cannot do is make a new estate plan for the principal. Texas says so about the transfer on death deed in a single sentence: it may not be created through use of a power of attorney. The agent who can sell the house cannot make the deed that would have passed it at death. That belongs on the list of things done while the owner can still sign for themselves.
If an institution refuses the document, that is a defined situation rather than a dead end, and several states give an agent a specific remedy. What the remedy is, and whether the state sets a clock on the refusal at all, is where the differences below matter most.
Source 7Not sure which of these is yours?
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Sahvelo gives information drawn from statutes, agency guidance and official forms. It is not legal advice for your particular situation. Terms & disclaimer.
Capacity is not a diagnosis
Families arrive at this page having decided that their parent cannot make decisions, and often they are right about the day-to-day and wrong about the law. Two distinctions do most of the work.
A diagnosisLegal capacity
A diagnosis of dementia does not by itself mean somebody lacks the capacity to sign anything. Capacity is a legal judgment about a particular decision, and it can be present for one thing and absent for another.
A permanent stateA moment
Capacity is assessed at the time of the transaction. Somebody who could not have signed last month may be able to sign today, which is why the timing of a signing is a real decision rather than an administrative one.
Something the family decidesSomething a court, a clinician or a notary decides
It is not for relatives to determine, and a notary who is not satisfied that a signer understands what they are signing may decline. That is the system working rather than an obstruction.
Sahvelo does not assess capacity, and neither should a family. What it will say is that the window in which somebody can still sign their own documents is the cheapest and least intrusive route available, and that it closes gradually rather than on a particular day. If there is any prospect of it, getting a durable power of attorney and the estate documents done now is worth more than any of the alternatives below.
Where a court is asked to appoint somebody, several states now require it to look for a less restrictive answer first, and one of them names supported decision-making agreements and assistive technology by name. That is worth knowing before anybody assumes a court appointment is the only option: the state may agree with you that it is not.
If there is no power of attorney
This is where families discover that the document nobody got round to was worth more than they thought. There are still routes, and they run through a court.
- A guardianship or conservatorship of the estate, depending on what the state calls it. It is the appointment that covers property and money, and it is not the same office as the one covering personal and medical decisions.
- Court permission for the sale itself, which several states require in addition to the appointment. Ask about this early, because it sets the timetable rather than the closing date does.
- A court order authorizing a specific transaction, where the state offers one, which can be lighter than a full appointment.
- A trust made by a court or by an agent with express authority, in the small number of states that allow it. This is a lawyer's question and not a form.
Court appointment takes months rather than weeks, costs money that usually comes out of the parent's own funds, and removes rights from the person it is about. It is a real answer and it should be the answer after the alternatives have been looked at, not before. Several states now require the court to satisfy itself of exactly that.
What a court has to find before it appoints anybody, and whether it is obliged to consider an alternative at all, is one of the sharpest state differences in this whole subject. Two states in the comparison below make the alternatives question a duty and a third makes it a discretion, and the difference shows up in how a family should prepare.
Before selling a home to pay for care
Most families reach this page because care has to be paid for. Authority is the first problem and it is not the only one, and the order in which these are dealt with matters more than the speed of any of them.
Settle these before the house is listed
- Whether the sale changes what your parent is entitled to. Turning a house into money can change eligibility for programs that treat a home differently from cash, and finding that out afterwards is expensive.
- Whether anybody has advised on the timing. Moving a house or its money without advice can create problems with a later application that nobody can undo.
- Whether a spouse or a dependent relative is living there, since that can change both what a program counts and what the family may do with the property.
- Whether a sale is actually necessary, or whether the equity can be reached another way. That is a question with real answers and they are not all sales.
- Where the proceeds will sit, and in whose name. Money belonging to somebody who cannot manage it needs somebody with authority to manage it, which is the same problem in a different form.
- What the property is worth, from somebody whose valuation a court or a program will accept if either later asks.
Do not transfer the house to a family member to protect it before somebody who knows the rules has looked at it. Transfers made in the period before an application can be counted, and the usual result is a penalty falling on the person the family was trying to protect.
And if the house is not going to be sold, the same authority question arrives in smaller forms: signing a lease, agreeing to a repair, dealing with the insurer, or accepting a tax bill. It is worth establishing who can act once, in writing, rather than once per transaction.
What changes where you live
Three states, on the two questions that decide whether a family can act: what the state asks of a power of attorney and what an institution must do with it, and what a court must find before appointing anybody. The three answers are as far apart as any comparison in this corpus.
What does the state require of a power of attorney, and must an institution accept it?
The answer in 3 states
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Arizona
Arizona asks the most of the signing and then helps the agent afterwards. A financial power of attorney must be both witnessed and notarized, and the statute restricts who may witness. Arizona also shifts the burden of proof where the principal was a vulnerable adult when the document was signed: show that, and it is the agent who must prove the principal had capacity. Against that, Arizona gives the agent an affidavit that presumes the power of attorney is still in force, rebuttable but usually enough to satisfy an institution that is hesitating.Source 1Source 2Source 3 -
Ohio
Ohio asks almost nothing of the signing and nothing at all of the institution, and the second half is the one families are not expecting. An Ohio power of attorney needs a signature and nothing else: no witnesses, and the notary is optional, with notarizing buying a presumption that the signature is genuine. It works from the moment it is signed unless it says otherwise, and where it is written to switch on at incapacity the statute says who may decide the principal is incapacitated. But Ohio's power of attorney chapter gives way to banking law where the two conflict, and it contains no section obliging a bank to accept the document, which every neighboring state in this comparison does have.Source 8Source 9Source 10 -
Texas
Texas asks least of the signing and most of the institution. A durable power of attorney needs no witnesses at all: the principal's signature, durability wording and an acknowledgment before a notary are what make it durable. What Texas then does is put the institution on a clock counted in business days, ten to ask for a certification and seven after receiving it to accept, require a refusal to be in writing with reasons by the same deadline, and let the agent sue to compel acceptance and recover costs and attorney's fees. And §114.054(b) of the Estates Code carries the limit that matters for planning: a transfer on death deed may not be created through use of a power of attorney.Source 4Source 5Source 6Source 7
What must a court find before appointing somebody over an adult?
The answer in 3 states
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Arizona
Arizona sets the highest bar of the three and writes the alternatives into it. A guardian may be appointed only on clear and convincing evidence of incapacity, of a demonstrated need, and that the need cannot be met by less restrictive means, with the statute naming technology among the alternatives the court must consider. A family preparing an Arizona petition should expect to have to say what else was tried.Source 11 -
Ohio
Ohio uses the permissive verb twice and the difference is not cosmetic. Its statute says a court MAY consider an alternative to guardianship and MAY refuse one because an alternative exists. Neither is a duty, so a family cannot rely on the court to raise it. What Ohio does have is a court investigator who goes and sees the person, and that investigator's report is where the alternatives question actually gets asked. Ohio also offers something the other two do not: a conservatorship a competent person asks for themselves, with the statute saying in terms that asking is not evidence that anything is wrong with them.Source 14Source 15Source 16 -
Texas
Texas makes the alternatives question a finding rather than a consideration, and adds a medical gate. A court cannot create a guardianship until it finds, by clear and convincing evidence, that alternatives and available supports were considered and are not feasible. It requires a physician's or psychologist's written letter before an adult guardianship, and it lets the court appoint a guardian with limited powers rather than all of them, which is often the proportionate answer where the only real problem is a single transaction.Source 12Source 13
Sahvelo has read all three of these states at their own sources. Another state's rule may differ, and we would rather say that than generalize.
Questions people ask about this
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Dad has dementia. Does that mean he cannot sign anything?
No, and treating it as a yes can cost a family the cheapest route it has. A diagnosis is medical and capacity is legal, and the legal question is asked about a particular decision at a particular moment: whether he understands what he is signing and its effect. Somebody can have capacity to sign a power of attorney and not to negotiate a sale, or capacity in the morning and not in the evening. If there is any window at all, using it to put a durable power of attorney in place is faster, cheaper and less intrusive than anything a court can do afterwards. Sahvelo does not assess capacity and neither should a family; a doctor, a lawyer or a notary is who decides in practice. -
The title company will not accept our power of attorney. Now what?
Find out in writing what is wrong with it, because the answers divide into three and only one of them is a real problem. It may be a defect in the document, such as no real-property authority or an execution the state does not accept. It may be a process point, such as the power of attorney needing to be recorded in that county before a deed signed under it can be. Or it may be an institution being cautious, and several states have a specific remedy for that, including a written-reasons requirement, a deadline and the right to recover costs. Ask which of the three it is before assuming the document has failed. -
I handle all my mother's affairs. Is that not enough?
For a great deal, in practice, and not for a deed. Institutions accept a familiar voice for a surprising number of things, which is exactly what makes this gap invisible until the day it matters. Conveying real property is where informal authority stops working, because a title insurer is being asked to guarantee that the person signing had the right to. If nothing formal is in place, the question is whether your mother can still sign a durable power of attorney. If she can, that is this month's job. If she cannot, the route is a court and it is better started now than during a sale. -
The house is in a trust. Does that solve it?
It probably does, and check two things before relying on it. First, whether the deed was actually transferred into the trust and re-recorded. A trust document that names the house is not the same as a trust that owns it, and this is the step most often missed. Second, what the trust says about who acts when the person who made it cannot: there is usually a successor trustee and a defined moment at which they take over, and that moment often requires something specific such as a physician's certificate. A trustee who is properly in office can generally deal with trust property without any court involvement at all, which is most of why trusts are used for this. -
We need to sell the house to pay for her care. Is that a problem?
It is a decision with consequences beyond the sale, and worth getting advice on before listing rather than after closing. Turning a house into cash can change what somebody is entitled to under programs that treat a home differently from money, the proceeds belong to a person who cannot manage them and therefore need somebody with authority to manage them, and transfers made in the period before an application can be looked at afterwards. None of that means the house cannot be sold. It means the sequence is advice, then authority, then sale, and families who reverse it are the ones who find out something expensive too late. -
Both my parents are on the deed and only one of them can sign. What then?
You need both signatures or an authority substituting for the missing one, and how the property is held decides how much room there is. Where they hold with a right of survivorship or as a married couple in a form the state provides for, neither of them can convey the whole property alone. Where they hold as tenants in common, each of them owns a separate share, and the one who can sign can deal with their own share and no more, which is almost never what a family wants. Get a copy of the recorded deed and read how it names them before assuming either way.
Official links you'll need
Every link goes directly to the issuing agency or the official tool, and opens in a new tab.
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Find a lawyer and affordable legal aid (USAGov) (opens in a new tab)
Elder law and guardianship questions are within scope at many legal aid programs, and the income limits often run higher than the phrase “legal aid” suggests.
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Find the local agency that can point you at elder law help (opens in a new tab)
The federal locator for aging services by zip code, including legal assistance programs for older adults.
Where this sits in the process
Before this
These produce something this topic needs.
- Power of attorneywhat the instrument is, and what an institution may and may not do with it
Related
- Guardianshipwhat a court appointment involves, what it costs in both senses, and what to exhaust first
- Which authority reaches whatthe four levels of financial authority, and what a power of attorney does not reach
- Memory and dementiagetting somebody properly assessed, which is a separate job from establishing authority
- Paying for care and Medicaidwhat selling or transferring a home does to eligibility, before anything moves
- How your home passeshow the deed is held, which decides how much any one signature can do
- Creating and funding a trustthe route that puts a trustee in place instead of an agent
- Housing transitionswhere the move itself, rather than the money, is the live question
- Heirs' propertywhere the owner has already died and the deed was never changed
Sources
Eleven provisions from three states, on the two questions that decide whether a family can act at all. The states were chosen because they disagree: one asks the most of the signing, one asks the most of the institution, and one asks almost nothing of either. What is not sourced here is anything about recording a power of attorney with a county before a deed signed under it may be recorded, which is a local requirement Sahvelo has not read anywhere and tells the reader to ask the recorder about.
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A.R.S. §14-5501 (Durable power of attorney; creation; validity) (opens in a new tab)
Arizona: witnessed and notarized, with restrictions on who may witness.
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A.R.S. §14-5506 — powers of attorney, intimidation, deception (opens in a new tab)
Arizona: the burden shifts where the principal was a vulnerable adult when it was signed.
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A.R.S. §14-5505 — the agent's affidavit of non-revocation (opens in a new tab)
Arizona: the agent's affidavit that the power of attorney is still live.
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Texas: no witnesses, and what actually makes it durable.
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Texas: the business-day clock on the institution.
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Texas: written reasons, and the agent's action to compel acceptance.
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Texas Estates Code §§114.051–114.056 — the transfer on death deed (opens in a new tab)
Texas: the transfer on death deed an agent may not create.
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Ohio R.C. 1337.25 — execution of a power of attorney (opens in a new tab)
Ohio: a signature and nothing else, with the notary optional.
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Ohio: when it switches on, and who decides the principal is incapacitated.
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Ohio: no section obliging a bank to accept it, unlike its neighbors.
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A.R.S. §14-5304 (Findings; limitations; filing; fingerprinting) (opens in a new tab)
Arizona: clear and convincing evidence, and less restrictive means including technology.
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Texas: alternatives and supports as a finding the court must make.
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Texas: the physician's letter, and guardianship with limited powers.
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Ohio Revised Code 2111.02 — appointment of guardian; emergency guardian (opens in a new tab)
Ohio: may consider, may refuse, and neither is a duty.
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Ohio Revised Code 2111.041 — investigation of the alleged incompetent (opens in a new tab)
Ohio: the court investigator, and where the alternatives question actually gets asked.
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Ohio Revised Code 2111.021 — conservatorship (opens in a new tab)
Ohio: a conservatorship a competent person asks for themselves.
Sources last reviewed 2026-09-09. Where a source is marked pending re-verification, the page says so wherever the claim appears.