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yet another POA question
Old 02-06-2019, 06:22 PM   #1
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yet another POA question

DW’s parents are getting on in years, and she is going to help them with their knowledge, by taking over some of their bill paying, etc. Everything will be done (if necessary) with complete transparency and knowledge of all of the siblings.

As part of this, DW went online and bought/printed a state POA for financial affairs.

We are in the process of selling their house, of which DW and I are part owners. When we were ready to sign the listing agreement with the real estate agent, she said that the FPOA was not really usable because it had not been filed with the county government where they now live.

I was not a fan of trying to do a legal thing like this online, but I have tried to stay out of it.

But I am curious if anyone else has tried to do this type of thing without a lawyer, and had to “file” the POA themselves.

It wasn’t a lot to print the form online, and maybe everyone will tell me that it is no big deal to file the documents... but any advice or anecdotes will be appreciated. FWIW, the state involved is North Carolina.

Mitch
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Old 02-06-2019, 06:35 PM   #2
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Are these parents able to make decisions on there own (competent to make financial choices on large dollar transactions?
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Old 02-06-2019, 06:48 PM   #3
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I'll be interested in the answers. My mother has moved to Texas and I am in the process of getting her home ready to sell. I met with an experienced realtor a couple weeks ago. I told her that I had an old POA but that we were planning to do a new POA specific to this sale of her home. The realtor never mentioned the POA needing to be filed with the county.

I found something on it... see below... it looks like it would only need to be recorded with the other closing documents to show that you had the proper authority to sign the deed.... that makes sense to me.

ETA: Just saw that in the OP that you are dealing with NC... I was focused on FL.

Quote:
... the Power of Attorney itself does not need to be recorded in Florida to be a valid document. The recording of the Power of Attorney becomes necessary with regard to the signing of a deed or similar document which is to be recorded (such as a mortgage, lien, satisfaction of mortgage, etc.) only to evidence the authority of the person signing. If the Power of Attorney relates to matters such as authority to sign a document, access property, discuss account information or other matters which may be subject to the power of attorney, it would not be necessary.
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Old 02-06-2019, 06:55 PM   #4
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That totally makes sense. For a title insurance policy, all the signatures need to be traceable. Recording the POA allows that
Some title companies are strange, however, I was divorced, and when I went to buy a house, this one company wanted a statement from my ex wife that none of the money was hers, like I could get that from her. So, I just changed title companies.
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Old 02-06-2019, 06:58 PM   #5
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Yes, they still can. For that reason, we had them sign the house listing agreement. But they are rapidly declining, and the siblings agreed that DW should start to take over when they need/want her to.
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Old 02-06-2019, 07:06 PM   #6
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Companies don't HAVE TO accept a POA. So really they can set whatever requirements they like. There are proposals in some states to require companies to accept them but not aware that any of those laws have been passed. Trouble is, if a company accepts a POA that is in invalid (and how does a company know that the POA has not been revoked) the company is liable for whatever the fraudulent POA does/steals.
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Old 02-06-2019, 07:34 PM   #7
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Sounds like a good idea to have a recent notarized POA. Maybe with a medallion stamp too eh?
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Old 02-06-2019, 07:50 PM   #8
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Quote:
Originally Posted by ugeauxgirl View Post
Companies don't HAVE TO accept a POA. So really they can set whatever requirements they like. There are proposals in some states to require companies to accept them but not aware that any of those laws have been passed. Trouble is, if a company accepts a POA that is in invalid (and how does a company know that the POA has not been revoked) the company is liable for whatever the fraudulent POA does/steals.
Actually, in Florida they do... if they fail to accept a POA they could be liable.

Quote:
What if the third party will not accept the power of attorney?
If the power of attorney was lawfully executed and it has not been revoked, suspended or terminated, third parties may be forced to honor the document. The third party is required to give the agent a written explanation of the refusal to accept the power of attorney within a reasonable time after it is presented to the third party.

Under some circumstances, if the third party’s refusal to honor the power of attorney causes damage, the third party may be liable for those damages and even attorney’s fees and court costs. Even a mere delay may cause damage, and this, too, may be actionable. It is reasonable, however, for the third party to have the time to consult with a lawyer or an internal legal department about the power of attorney. Delay for more than a short period may be unreasonable. Upon refusal or unreasonable delay, consult an attorney.

Why do third parties sometimes refuse powers of attorney?
Third parties are often concerned whether the document is valid. They do not know if it was executed properly or forged. They do not know if it has been revoked. They do not know if the principal was competent at the time the power of attorney was signed. They do not know whether the principal has died. Third parties do not want liability for the improper use of the document. Some third parties refuse to honor powers of attorney because they believe they are protecting the principal from possible unscrupulous conduct. If your power of attorney is refused, talk to your attorney.

What if a third party requires the agent to sign an affidavit before honoring the power of attorney?
A third party is authorized by Florida law to require the agent to sign an affidavit (a sworn or an affirmed written statement), stating that the agent is validly exercising the authority under the power of attorney. If the agent wants to use the power of attorney, the agent may need to sign the affidavit if so requested by the third party. The purpose of the affidavit is to relieve the third party of liability for accepting an invalid power of attorney. As long as the statements in the affidavit are true at that time, the agent may sign it. The agent may wish to consult with a lawyer before signing it.

What else may the third party require?
A third party also may make a reasonable request for an opinion of counsel as to any legal matter concerning the power of attorney, including its proper execution under the laws of another state.
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Old 02-06-2019, 09:11 PM   #9
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Some states require the PoA to be recorded / filed / registered with a government agency (such as the country property recorder) before drawing up documents for a property sale / transfer. My state does. Filing fees total around $100.

I have never seen a Medallion Signature Guaranty associated with a PofA. I have seen them used with financial directives, like instructions for changes to pension distributions.
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Old 02-06-2019, 09:51 PM   #10
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I got a Power of Attorney about two years ago when my mom had a stroke. Mine cost around $295 but cost a bit more than usual because the attorney had to travel to her rehab center to get her signature. I was also doing everything remotely from another state.

The POA helped with some basic things like closing bank accounts and utilities, but it was not acceptable for many other things. Her Railroad Retirement (Social Security) had their own paperwork she had to sign and get notarized. When we sold her house, I had to take mom to the title company to sign the documents herself. I also had to fill out paperwork at the doctors and hospitals to have any access to her medical records.

Since then I have set up most accounts as joint accounts (with her as the primary owner) so I can easily make changes as needed.
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Old 02-07-2019, 02:01 AM   #11
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This thread raises a question for me. At some point, we will likely need to help MIL with paying her bills (not financially but just bill paying to make sure it gets done properly). Would that require a POA? We don’t live where she does so I was thinking we could just do her bills online for her, but maybe it’s better to have a POA?
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Old 02-07-2019, 02:45 AM   #12
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POA's are very powerful legal documents and many banks and other financial institutions can be very finicky when accepting these documents. I have used POA's many times for my parents, and based on my experience I would just pay an attorney a few bucks to do it correctly. He/she will make sure your powers are properly enumerated and the document is properly recorded, and can always step in to answer any questions or handle issues that come up when you are using the document.

Just FYI, a POA is only valid during your parents' lifetime. When they pass, the POA authority will expire immediately and the trustee/executor has all the control over estate issues, bank accounts, etc. Depending on how the other siblings feel, it would be far easier for them and for you to just have them add your DW as an authorized signer on their bank accounts so she can do whatever she needs to do for her parents, whenever it is needed. You can still give the bank the POA, but having both is optimal.

The fact that my parents turned over their bank accounts and even renounced their trustee status to me [along with the POA] made it so much easier to help them in their final years, and ultimately to prepare for their eventual passing. I took care of all their bills and even their taxes. Since I was managing all their affairs, when Dad passed I didn't need poor Mom to do anything; and when Mom passed I could settle their estate in hours instead of days.
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Old 02-07-2019, 03:46 AM   #13
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Title company required their own POA for the transaction that we recently did for DMIL. The agent came out to meet DMIL at her residence to get it signed, and he was a notary so he took care of that too.

I would have preferred that they accepted the POA that we had previously drafted, but this was a reasonable alternative in our case.

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Old 02-07-2019, 04:06 AM   #14
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Quote:
Originally Posted by mountainsoft View Post
I got a Power of Attorney about two years ago when my mom had a stroke. Mine cost around $295 but cost a bit more than usual because the attorney had to travel to her rehab center to get her signature. I was also doing everything remotely from another state.

The POA helped with some basic things like closing bank accounts and utilities, but it was not acceptable for many other things. Her Railroad Retirement (Social Security) had their own paperwork she had to sign and get notarized. When we sold her house, I had to take mom to the title company to sign the documents herself. I also had to fill out paperwork at the doctors and hospitals to have any access to her medical records.

Since then I have set up most accounts as joint accounts (with her as the primary owner) so I can easily make changes as needed.
Bolded - Since I have taken over my parents finances, this is what I do with any new accounts and share a trustee relationship on their trust.
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Old 02-07-2019, 04:41 AM   #15
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Thanks to all of you for your replies... It sounds like in most cases, if possible, it is best to have a specific authorization signed. But when that is not possible, whether due to dementia or some other reason, a POA allows one to act on another's behalf. My main question was about the use of canned forms, such as found on many web sites, and the need for filing them. I will make sure that at the least, DW contacts the county government where he in-laws live and see what they tell her.
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Old 02-07-2019, 05:26 AM   #16
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There’s nothing wrong with using a canned form, as long as it is durable. A durable power of attorney specifically authorizes the agent to act even if the grantor subsequently suffers from cognitive decline. I exercise a durable POA for my mother and have had no issues at all with banks, State offices, IRS, or anyone else, even though she no longer lives in the state where it was written.

Banks and other institutions sometimes refuse to honor the POA and insist on using their form only. This is really unlawful, but one must hire an attorney to resolve and that means time and money. Best is to confirm with the bank which form is needed when it is first being signed.
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Old 02-07-2019, 09:56 AM   #17
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I have POA for mom, she's clear as a bell but no longer wants the head ache of doing some things and I don them for her. I always get her permission to sign anything as Attorney if Fact and document it in my records. The POA is recorded at the county where she lives, some places only accept the signed original so I'd advise making and signing a few copies from the start. Giving POA is a huge responsibility and I'd recommend an attorney, just for the legal advice at the start.


DW sister has POA for their dad and it immediately went to her head. She waves it like a gun and has completely taken over every aspect of his life, financially and day to day activity. She answers to nobody. Because with the POA she can. Be careful with POA, it's powerful stuff.
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Old 02-07-2019, 10:37 AM   #18
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Here in NC POAs are usually recorded at the county level (county clerk of court)

Once filed, they are available online and you can print out at home a copy showing that's it's been recorded.

Once recorded there's an official stamp on the front page of the online version, so there's no need to get it certified like you'd need to do (at least in this state) with a birth certificate.

Banks, credit unions, etc. vary...one accepted the copy I had from the lawyer's office (before it had been recorded)...another insisted on a recorded copy.
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