Cynthia, my client is an elderly woman, she is currently living in a board and care facility, and her son is signing all the paperwork for her with a power of attorney. Does he have to sign her name, or his name on the listing agreement and any offers?
That’s an excellent question! There is always a lot of confusion about using powers of attorney.The most important things to know about a Power of Attorney (POA) are the following:
1) Not all POA forms will work for a Real Estate Transaction, a General or Durable power of attorney may not be accepted by title, escrow, and/or a lender.
2) The POA form will need to be notarized, and the original will generally need to be submitted into escrow for recording at the close of escrow.
3) The POA form will need to be approved by the title company, to make sure they meet their requirements, if the POA is being used for a document which will be recorded at the close of escrow, such as a Grant Deed, Quit Claim Deed or Deed of Trust.
4) The POA form will need to be approved by the buyer’s Lender, if it is going to be used to sign loan documents. This needs to be done, generally, well before loan documents are prepared.
5) Title and Escrow Companies generally do not like to see a POA that is more than a couple of years old, although there is no hard and fast rule. An older POA is seen as more risky, because there may be a question as to whether the signor intended the powers of attorney to be long term.
6) This is really important: If the buyer and/or seller is holding or taking title in a family trust, it gets a little more complicated. The title company may have to review the entire trust agreement, to see if the Trustee of the Trust has the ability (under the terms of the trust) to use a POA for Trust signatures. This is something that can really throw a curve ball into a transaction.
When signing with a power of attorney, a special signature is always required.
If Bob Jones give his wife Sara Jones a Power of attorney form, Sara will have to sign the following, everywhere Bob would normally be required to sign:
Bob Jones, By Sara Jones, his Attorney in Fact.
If Sara Jones gives her husband Bob Jones a Power of Attorney form, Bob will have to sign the following, everywhere Sara would normally sign:
Sara Jones, by Bob Jones, her Attorney in Fact.
NOTE: If your client tells you they already have a POA form, please get it into escrow EARLY in the process, so we can get it approved.
If you know that your buyer and/or seller will be out of town or otherwise unavailable for the escrow closing, ask your escrow officer to prepare a power of attorney during the listing period, or early in the escrow, so that there is plenty of time to get it signed in the presence of a notary. We have special forms, specific to the particular transaction, which can generally meet lender and title company requirements.