POWER OF ATTORNEY

A power of attorney for the conveyance of real estate must be acknowledged and must be recorded in the Registry of Deeds for the county where the property is located. The general rule is that a power of attorney is to be strictly construed. Accordingly, care must be taken to establish that the power is broad enough and specific enough to accomplish the acts anticipated in the transaction. It has been held that the power to sell property does not include the authority to mortgage it. In addition, you must make a determination that the power has neither been revoked nor has the same been terminated.

In 1981, Massachusetts adopted the Uniform Durable Power of Attorney Act (Massachusetts General Laws, Chapter 20lB). Section 5 of that statute provides in part "an affidavit executed by the attorney in fact under a power of attorney, durable or otherwise, stating that he did not have, at the time of the exercise of the power, actual knowledge of the termination of the power by revocation or of the death, disability, or incapacity of the principal shall be conclusive proof of the non-revocation or non-termination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, such affidavit when authenticated for record shall be likewise recordable." Careful practice dictates that you obtain and record such an affidavit whenever dealing with an instrument signed under a power of attorney.

Please be very careful when dealing with powers of attorney. By their very nature, they are difficult to authenticate and easily forged. Always ask questions concerning the whereabouts and condition of the principal. If possible, confirm the acknowledgement by contacting the notary involved. If a power of attorney is over a year old, find out why a more recent one is not available. Follow your hunches.

For additional rules governing powers of attorney, see Massachusetts Conveyancers Association Title Standard No. 34.