Downloadable Form (PDF format)
What is a Power of Attorney?
A power of attorney is a written instrument by which a person (the “principal”) appoints another as agent (the “attorney in fact”) and confers upon the agent the power to perform certain specified acts on behalf of the principal. A power of attorney creates an agency relationship, with the giver of the power remaining the legal owner of any property involved. A power of attorney may be general or special.
What is a Special Power of Attorney?
A power of attorney which authorizes the execution of a specified real estate transaction or establishes certain power limitations.
Some Criteria and Guidelines for Powers of Attorney
Mat-Su Title, and its underwriters, have certain guidelines in accepting powers of attorney in a real estate transaction. These criteria not only protect ourselves, but the Buyer and Seller, lender, and the real estate agent/broker. These criteria include:
- Form: It is best to use the statutory form if one is available; If not, we look to see if it contains proper language to grant, sell, mortgage, buy, convey etc.
- Age: If the power of attorney is less than 3 years old, it is normally acceptable. If beyond that time period, we must confirm that it is still valid or obtain a new Power of Attorney.
- Who is granting the Power of Attorney? Must be an adult individual. No corporation, partnership, LLC (e.g. A president cannot delegate his or her duties – that must be done by the Board of Directors). No Trustee of a Trust can sign away his or her duties without assuring ourselves that the Trust allows such delegation.
- Who is receiving the Power of Attorney? Must be an adult individual. Cannot be both the Power of Attorney and Grantee of the Deed (i.e. to themselves).
- Other Issues: Generally speaking we look more closely at transactions where the power of attorney signed both the earnest money agreement and deed. We generally ask for written confirmation of intent to sell if this is the case. We might ask to see the listing agreement to see if principal signed that document.
- Why the concern? Powers of Attorney can be revoked but the revocation need not be recorded to the effective. That is why older powers of attorney are not generally accepted. Death will always revoke a power of attorney; Disability (mental incapacity) may also terminate a power of attorney. Out of State Powers of Attorney are subject to the laws of the state in which it was signed.
Powers of Attorney are a valid way to facilitate a real estate sale when one party cannot be present to sigh. However, they are also often subject to challenge due to allegations of lack of authority. So please tell us as soon as possible if a power of attorney is to be used so that one can be provided to your customer. (The original power of attorney will need to be recorded as part of the transaction if not previously recorded.)
Disclaimer: These forms are provided to you as a reference only. The Company makes no guaranty as to their validity or sufficiency for your needed purpose. Further, the completion of any form may alter and impact your rights. The Company strongly encourages you to seek your own independent legal, accounting or other professional advice prior to utilization of any form including those contained on this site.