Power of Attorney – When is it needed and what does it do?
Just any old Power of Attorney is not sufficient to buy, sell or convey title to real property. A Power of Attorney for healthcare decisions, for example, is meaningless when it comes to Real Estate matters, as it does not grant authority to deal with the assets of the other party.
Types of Power of Attorney:
- Limited/Specific Power of Attorney – Grants only those powers specifically outlined to the transaction at hand and no other authority is given. For that reason, the Power of Attorney must specifically define the property, whether or not this property is to be sold or encumbered, and the authorities given. When the transaction requires relies upon a Power of Attorney, it is vital that the document be submitted as soon as possible to the Title Company so that it may be reviewed. This POA shouldn’t be older than 1 year.
- General Power of Attorney – Allows the Attorney in Fact to act on behalf of the Principal for all phases of all of their business up to and including the sale or purchase of Real Estate. It will cover any property owned by the Principal, – This POA shouldn’t be older than 1 year.
- Durable Power of Attorney – This is often given for healthcare decisions to be made in case of coma or other physical and mental incapacity. It survives the incapacity of the Principal if it contains the property language.
Some Power of Attorney language includes:
Principal: The person who grants authority to another party to act on his/her behalf
Attorney in Fact: The person given the authority by the Principal to act as his/her agent
*I am not an Attorney. As with all complex legal matters, legal counsel should be obtained before making decisions or for complete review of such matters. Do you have a situation where a POA may be needed to facilitate a Sale or Purchase? I can refer you to some trusted Title Companies I’ve worked with. Just drop me a message!
Here are a few more facts regarding a Power of Attorney
- A Power of Attorney usually cannot be used to act on behalf of a trustee of a trust.
- Since title insurance requires that the Power of Attorney be recorded, the document must be notarized.
- Any documents regarding the sale or purchase of a home that will be signed out of the country should be signed at an American Consulate.
- No Power of Attorney survives the death of the Principal.
- The Statutory form provided in California’s Probate Code Section 4401 is the best one to use, provided that the appropriate and necessary boxes are checked and that the form is not modified.