Question: When my father died, my mother moved out of the family home and moved in with my sister in Colorado. She is now selling the family home, which is located a considerable distance from where she currently resides in Colorado. She has entered into a purchase and sales contract and settlement is to take place at the end of this month.

Although my mother is mentally competent, she cannot fly back for the settlement. She lived in this house for almost 35 years and has a strong emotional attachment to it; I really don’t want to put her under more stress and strain. What can she do to avoid this unnecessary expense?

Answer: The answer is quite simple. Have your attorney (or the settlement company where settlement will take place) prepare a document known as a "power of attorney," whereby your mother would authorize you to sign all legal documents in order to convey the property. A power of attorney is a written document whereby one person -- as principal -- appoints another as his or her agent, (attorney) and gives that agent the authority to perform certain acts on behalf of the principal. The written document itself is the power of attorney. In many parts of the country it is called a "letter of attorney."

The power of attorney can be general, special or mixed. 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 the agent.

In a special power of attorney situation, the principal authorizes the agent to take certain actions -- actions which are specified in the document itself. The agent holding the power of attorney must be quite careful not to exceed or deviate from the specific authority spelled out in the written instrument.

The rules for powers of attorney vary from state to state. Here is a summary analysis of the power of attorney laws in all of the three surrounding jurisdictions.

In Virginia, as long as the agent has a general power of attorney, the agent has authority to sign a deed -- and a deed of trust -- on behalf of the principal. There are specific rules and requirements 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 of Columbia, powers of attorney for the sale of real estate only recently became the law. However, there is special language that is required to be on the top of the power of attorney document, and the Recorder of Deeds will not accept the document without this important language.

Thus, your mother does not have to make the trip back to this area. A power of attorney can be prepared, which should be sent to her as soon as possible. She will have to sign the document, have it notarized, and then returned to you.

When you go to settlement, you must give the settlement attorney the original, signed and notarized document. The attorney will have to record it among the land records where the property is located before recording the deed of conveyance.

Not everyone wants to give a power of attorney for the sale of real estate. Some people like to sign their own documents -- especially the deed to their property. Thus, you can also make arrangements with the settlement attorney to send your mother -- by one of the special courier services -- all documents which she will have to sign. Those documents will also have to be notarized and specific, clear instructions must be put on every page where a signature is required. Your mother should then send the papers back to you -- not the settlement attorney -- so you can bring them to the settlement.

Here's a tip, however: You should be present at settlement to make sure that all of the papers are in order. Make sure that your mother is available near a telephone if questions come up. Settlements, in my opinion, are the beginning and the end of a process. Many times, questions come up which can only be answered by the owner -- such as when the fence in the back yard was installed, who services the boiler, or who are the neighbors.

All too often, buyers and sellers take the settlement proceedings for granted. However, it is a very important step in the home buying (or home selling) process, and must be treated with respect.

You have indicated that your mother is mentally competent to sign a power of attorney. That is important. If she were not competent, you would have to go to court -- most likely in Colorado where she is currently living -- and have a conservator appointed to handle the financial affairs of your mother. This is a time consuming -- and often expensive -- process, and thus it is recommended that everyone prepare a "Durable Power of Attorney" authorizing a relative or a friend to handle your affairs should you be out of town or incapacitated.

Published: December 15, 2003

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