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Does a POA need to be recorded to be valid?

Mom granted my sister and myself Durable Power of Attorney a few years ago and we have been transacting business for her since, with no problems; everything from medical permissions and government documents to everyday finances. Now, while attempting to sell a small piece of vacant land that she owns, the title company informed us that, though the POA document was signed, witnessed, and notarized, they cannot accept it because it was not recorded with the circuit court. The court would require the original document in order for it to be recorded, and we only have copies. Trouble is, with mom's constantly shifting moods and her often irrational behavior, she is disgusted with us at present and refuses to supply the original. Could she have the POA declared void and take control of her finances? I fear she would no longer be capable of keeping things straight.
Status: Open    Apr 27, 2016 - 07:46 AM

Finance, Elder Law

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Apr 28, 2016 - 08:22 AM

Powers of attorney are valid whether recorded or not. However, if you are trying to use a power of attorney in a real property (land) transaction, then it does need to be recorded. Further, it does typically need to be an original. If you mother has the requisite capacity, she can revoke the power of attorney. If you feel she does not have that capacity, your only recourse is to file for a protective proceeding in court. The court would then assess your mother's capacity and appoint you or your sister her guardian/conservator to manage her affairs (which is like a court created power of attorney).

Apr 28, 2016 - 08:25 AM

No, a POA does not need to be recorded to be valid in most cases. However if the attorney in fact signs a deed a behalf of the principal, the title company will generally require the original POA to be recorded with the register of deeds. The only way to have the POA declared void and for you to take control of her finances would be to pursue a guardianship and/or conservatorship. You should consult with an elder law attorney.

Apr 29, 2016 - 08:00 AM

In Ohio if an agent is signing a deed under the POA, the original must be recorded. If Mom is competent she most certainly can revoke the POA.

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Apr 28, 2016 - 08:22 AM

Powers of attorney are valid whether recorded or not. However, if you are trying to use a power of attorney in a real property (land) transaction, then it does need to be recorded. Further, it does typically need to be an original. If you mother has the requisite capacity, she can revoke the power of attorney. If you feel she does not have that capacity, your only recourse is to file for a protective proceeding in court. The court would then assess your mother's capacity and appoint you or your sister her guardian/conservator to manage her affairs (which is like a court created power of attorney).

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Jun 05, 2016 - 12:59 PM

This is a minefield for you. If the sale completes and your mother revokes the POA she could make a lot of trouble for the buyer of this property. The buyer could even sue you for misrepresentation. In my personal opinion you should not be engaging in selling anything of hers with any real value - particularly propery - without a guardianship unless you have her complete cooperation and participation, regardless of whether you have a POA or not.

The land isn't going to run away and if it's valuable there is always going to be a buyer out there with more money for it. I think you are being snookered by the buyer into believing that this is your last chance to sell it and make good money and you have undue haste in selling. Sell in haste, repent at leisure.
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