A lawyer assesses the complexities surrounding a spouse’s ability to sell a jointly owned home under a power of attorney when the other spouse is incapacitated. The primary concern arises from potential conflicts of interest, particularly when the proceeds are intended for a smaller residence or nursing home care.

The Act on Powers of Attorney includes a provision, § 13, that prevents an attorney from engaging in legal transactions with themselves or using the power of attorney in situations with conflicting interests. This has led to disagreement among lawyers about whether a spouse holding power of attorney can sell the shared home.

According to the preparatory work for the law, the intention is to prevent an attorney from buying the principal’s property for themselves. However, it also acknowledges that § 13 generally does not prevent a spouse-attorney from disposing of jointly owned property, as their interests are typically aligned during a sale.

If there are indications of conflicting interests in a specific situation, the power of attorney cannot be used. In cases where multiple attorneys are appointed, one without a conflict can act. If no such attorney exists, an ad hoc guardian can be appointed under guardianship rules to represent the principal’s interests for that specific transaction.

The lawyer believes that if the power of attorney grants the authority to sell and buy property and take out loans, the surviving spouse should be able to manage the situation. However, there are conflicting opinions on this matter. The lawyer bases the assessment on the preparatory work of the law combined with common sense, while recognizing that legal interpretations may prevail.

A judgment exists where two sons, acting as attorneys for their mother, were restricted from buying her property without a special guardian. The lawyer argues that this situation differs from a spouse selling a shared home to optimize financial and housing conditions for the incapacitated spouse.

The Ministry of Justice acknowledged the need to examine the self-contracting prohibition in an evaluation published on September 30, 2022, and promised to invite relevant stakeholders to discuss the issue. The lawyer expresses disappointment that no progress has been made, and hopes that the Legal Affairs Committee of the Parliament will address the need for clarification in this area.