The Special Power of Attorney in Real Estate
The Special Power Of Attorney
The Special Power Of Attorney is only one of many types of powers of attorney. The most common is a health care power of attorney, which grants another the authority to make health care decisions when you cannot. Others include the General Power of Attorney and the Special Power of Attorney. We will focus on the special type.
Unlike a general power of attorney which empowers someone to act on your behalf in almost all legal matters, a special grants someone the right to act in one specific matter and usually for a specified period of time. A Power of Attorney is often referred to as a POA.
Use In Real Estate Transactions
This type is often used for land transactions. With this document you grant someone the power to act in your behalf on all matters dealing with a specific piece of land. This would included buying, selling, mortgaging, leasing etc.
When a person is unable to attend their closing they may grant a special powers of attorney to their spouse or other trusted person. Banks and title companies often require this type of POA and require it to describe the specific property.
A durable clause can be added to any type of power of attorney. It means the power of attorney is still in effect if the grantor (person giving power of attorney to another) becomes incapacitated or mentally incompetent. This incapacity includes Dementia, Alzheimer’s or a coma.
You should be cautious and grant this only to someone you completely trust. You can revoke a power of attorney at any time, unless you are mentally incompetent. The power of attorney then stays in effect while you are judged incompetent, which could be until death.
Void Upon Death Of Grantor
Upon the death of the grantor all powers of attorney are automatically and immediately void. Many times I have seen individuals try to use a power of attorney granted by a person who is now deceased. They did not understand that it is now void.
Be careful in choosing who you grant power of attorney. You must trust this person completely and know they will act in your best interest and according to your instructions. You are giving them a great deal of power to make decisions and act on your behalf. Most of these decisions cannot be changed.
To revoke a power of attorney you send a signed statement to the holder stating it is revoked. You also request the original document be returned to you. You should also notify anyone who has a copy, or has conducted any business based on the power of attorney, of the revocation.
When creating a POA it usually states it revokes all previous ones. The special may not have this wording as it is for a specific purpose.
The use of powers of attorney in real estate transactions is limited. Many banks and title companies will not allow their use. Often title companies will require a power of attorney they prepare. They are hesitant to use a general power of attorney or any power of attorney that is old.
Because the POA is the most forged document they will want to know why you are using it, may want to prepare it themselves, and will want to talk to and maybe meet the individual granting the power of attorney.
They will also insist on a Special Power of Attorney that specifically describes the land for which it is granted.
The Special Power of Attorney grants broad powers and should not be used if it can be avoided.