A Power of Attorney (POA) allows another person to make financial and legal decisions for someone else. In the context of residential real estate, these documents can be very helpful in the many situations, including:
- a Buyer or Seller is on active military duty overseas;
- a Seller is on vacation or otherwise not in Canada at closing;
- a Seller works in northern Canada and does not have regular access to a lawyer;
- a Seller is elderly or disabled and is unable to deal with his or her affairs;
IMPORTANT NOTE: For Buyers, the use of a Power of Attorney is strictly limited by many Mortgagees (Banks) and often they must pre-approve of the use of a POA before subjects are a removed on a deal where the Buyer is signing by POA.
A new Power of Attorney Act came into effect in BC on September 1, 2011. Although it did not invalidate older Powers of Attorney, new rules were brought into force. When faced with a power of attorney here are some questions should a Realtor ask (ideally upon listing If you know you have a POA)?
- Is the Donor (person granting the POA) ALIVE and NOT BANKRUPT?
- Has the ORIGINAL Power of Attorney been given to my client’s lawyer for filing in the Land Title Office?
- Has this Power of Attorney been reviewed with my client’s lawyer to ensure it is effective to transfer real estate and is it compliant with the Land Title Act?
- Am I aware of any action by the Donor or Attorney which would void or terminate the Power of Attorney?
- Are ALL signatures on the Power of Attorney document witnessed by a lawyer/ notary?
- Do the NAMES on the Power of Attorney match EXACTLY the names on the Title (in the case of Sellers) or the names on the Contract (in the case of Buyers)?
- If the Seller is incapacitated and the sale is to occur by POA, does the Power of Attorney “continue when incapacitated”?
- In order to guard against fraud, do I “know the property” and do I “know my client”?