Use of powers of attorney is not encouraged, but documents based on their use can be insured. The examiner must make sure that:
1. The power of attorney provides the attorney-in-fact full power to “convey” or “mortgage” the subject “real” property;
2. The principals were living and mentally competent at the time of execution and delivery of such conveyance or mortgage, or the POA must be durable in form;
3. The POA had not been revoked. In some states, death of the principal, his/her insanity or incompetency, bankruptcy or insolvency, and/or subsequent marriage can revoke a POA; and
4. The POA was/is properly recorded.
5. Must be a recent POA with limitations as to time periods.
Additionally, in some jurisdictions, a POA must be in recordable form, which would include compliance with statutory requirements for witnessing and/or acknowledgments.
Agents National Title recommends that the POA be specific as to the property (contains an adequate legal description) and also have the operative language setting forth the powers of the attorney-in-fact to convey or execute documents on behalf of the Principal. In some jurisdictions, the language “to perform any and all acts” is not sufficient.
NOTE: A common tactic used in fraud claims is for the perpetrator of the fraud to present, at closing, a power of attorney. Supposedly signed and acknowledged outside of closing which authorizes the attorney in fact to sign deeds, mortgages, etc. for the present closing. When this occurs, the power of attorney (just like a deed signed outside of closing) must be carefully scrutinized and questioned. Verification of its authenticity is absolutely required.