Q: My mother, who has retired to Florida, is selling her house in this area. I have made all of the arrangements for the sale, and settlement is to take place soon.
The title attorney who will be handling settlement says my mother must come to the settlement meeting to sign the deed. This would be a tremendous inconvenience and an additional cost that we would prefer to avoid. I have heard that deeds can be conveyed by a power of attorney. Can you advise?
A: A power of attorney is a written document in which one person -- as principal -- appoints another as his agent (attorney) and gives that agent the authority to perform certain acts on behalf of the principal.
The power of attorney can be general, special or a combination of the two.
A general power of attorney gives the agent the broadest possible powers to act on behalf of the principal. The attorney acting under this general authority usually can sign deeds or other legal papers, and the principal will be bound by the acts of his or her agent.
Under a special power of attorney, the principal authorizes the agent to take certain actions that are specified in the document itself.
The rules for power of attorney vary from state to state. Although I assume that your mother's house is located in the District of Columbia, here is a capsule analysis of the power-of-attorney laws in all three jurisdictions:
In Virginia, as long as the agent has a general power of attorney, the agent has authority to sign a deed -- and deed of trust -- on behalf of the principal. There are specific rules and regulations as to how the agent should sign, and these should be reviewed before the power of attorney is executed by the principal.
In Maryland, a deed can be transferred by a power of attorney, but the attorney-agent must act under authority of a special power of attorney. This document must authorize the agent specifically to sign a deed for the property in question. Additionally, the power of attorney must be recorded among the land records in the appropriate county in Maryland before the deed signed by the attorney will be valid.
In the District, the law specifically does not recognize deeds signed by a power of attorney. Thus, in the District, your mother will have to sign the deed herself. Please note that your mother's signature will have to be notarized by a notary public. This prohibition against powers of attorney in the District also applies to a deed of trust (the mortgage document) insofar as this, too, is a "conveyance" that cannot be used with a power of attorney.
Thus, if your house is in Virginia or Maryland, a power of attorney -- carefully drawn -- will permit you to sign on behalf of your mother.
If the house is in the District, the power of attorney is not acceptable. However, that does not mean that your mother will have to come to Washington to sign papers. You can arrange with the title attorney to send her the necessary papers, and she can have them signed and notarized in Florida and returned well in advance of the settlement date.
Here's a tip, however: You should be present at settlement to make sure that the papers are in order. Make sure that your mother is near a telephone if questions come up.