Posted by Frances Kany on 11/9/12 12:55pm
Msg #442777

Question about Power of Attorney

I have a closing scheduled for tomorrow. When I called the borrower I spoke with the husband and told him if wife would be required to attend since MS is a marital state and she would have to sign some documents even if she was not on the loan. He said she may or may not. She may not have finished her shopping but he has a power of attorney for her. I asked that she make every effort to be there and I would adjust my time if need be.

My question becomes, since she is obviously not incapacitated, can he actually sign for her and send a copy of the POA with the documents?

Reply by MistarellaFL on 11/9/12 1:03pm
Msg #442778

Not without the lender's prior approval

Contact the hiring party and share this information.

Reply by SharonMN on 11/9/12 1:07pm
Msg #442781

...since she is obviously not incapacitated...

There is no requirement that a person be incapacitated to have an attorney-in-fact act for them. If there are no restrictions in the POA, the attorney-in-fact may act for them simply because they don't feel like acting for themselves or don't want to think/worry about business, money, etc.

I agree, however, that the lender and title company need to approve the POA.

Reply by Marian_in_CA on 11/9/12 1:55pm
Msg #442789

"There is no requirement that a person be incapacitated to have an attorney-in-fact act for them"


Well, I don't know about that... I think it totally depends on the terms of the document. I've seen all kinds and some say they are effective immediately and others say they only become effective upon certain events happening -- such as the person becoming medically or legally determined unfit to make their own decisions.

Reply by SharonMN on 11/9/12 4:00pm
Msg #442804

Marian, that's why I said "If there are no restrictions in the POA,.." You are correct that many POAs only become valid when the principal is incapacitated, out of the country, etc., but it is perfectly legal to draft a POA giving another person the ability to manage your affairs for you as a matter of course.

Reply by Pro Mobile Notary on 11/9/12 1:30pm
Msg #442784

The original of the POA has to be sent with the docs and a copy of it is not acceptable. Why? you cannot record a copy of the POA and in order for the signing of the husband for the wife to be valid the POA must be recorded prior to the mortgage instrument or trust deed being recorded.

Reply by MrEd_Ca on 11/9/12 1:38pm
Msg #442787

Would a Certified Copy of a POA work ? n/m

Reply by Pro Mobile Notary on 11/9/12 3:53pm
Msg #442802

Re: Would a Certified Copy of a POA work ?

MrEd_Ca, only an original POA can be recorded in CA, not a copy of any kind to the best of my knowledge. I am taking a notary class tomorrow to renew my commission. I'll ask the instructor tomorrow and see what he or she says.

Reply by Marian_in_CA on 11/9/12 2:00pm
Msg #442790

That's not necessarily true... in some states that might be true, on others not so much. In California , for example, it is NOT true, no matter some might have you believe. The CA probate code is very clear on this subject... and it is in our handbooks... a properly certified copy of an original POA is just as effective as an original. (CA Probate Code 4307)

Reply by Pro Mobile Notary on 11/9/12 3:55pm
Msg #442803

I do not believe recorders offices are bound to follow probate codes. It might be appropriate for probate proceedings, but I believe for a real estate transactions it has to be the original.

Reply by Linda_H/FL on 11/9/12 4:56pm
Msg #442806

Could possibly be state specific, but I know CT and FL

will accept a certified copy for recording.

Reply by JanetK_CA on 11/12/12 1:16am
Msg #443033

Reminds me of the paper extension of a Driver License. It's perfectly valid for driving but not acceptable for identification by a notary public.

Reply by Frances Kany on 11/9/12 2:17pm
Msg #442791

You have all given excellent advice. I was thinking after this call I might need to call the title company. I too have seen many different types of POA's. Since I would not be able to view this before I made the trip out there I will call, get clarification and then call the borrower back to make sure he follows the title company and lenders requirements.

Have a great weekend everyone!!!

Reply by Linda_H/FL on 11/9/12 4:58pm
Msg #442807

Bottom line is, with loan signings, it's not something he

can decide to do at the last minute...has to be approved by title.

Also helps avoid sneaky petes...wonder why she absolutely cannot be available...my spidey sense is up...

Reply by MistarellaFL on 11/9/12 6:33pm
Msg #442824

Reason why? "That would be shopping, dahling"

<said in Lovey Howell voice).

Reply by Linda_H/FL on 11/9/12 7:00pm
Msg #442828

ROFL Misty!! n/m

Reply by Pro Mobile Notary on 11/9/12 8:06pm
Msg #442839

I just got a absolute and certain answer from my wife.

In CA only the original POA can be recorded. No copies, certified or otherwise, can be recorded.

She spent 16 years as a SVP and escrow officer for First American Title in Marin County, CA.