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POA for Real Estate Transactions

Discussion in 'Power of Attorney & Living Wills' started by Adverse, Dec 31, 2021.

  1. Adverse

    Adverse Law Topic Starter Member

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    Jurisdiction:
    Missouri
    In Missouri, legal documents granting power to conduct real estate transactions must be recorded. So, I take it that would mean Durable General Power of Attorney, and Revocable Living Trusts, so the Attorney-in-Fact and Successor Trustee have the power.

    What if those original documents were not recorded, and now only digital copies are available?

    The wording in the Statute is "acknowledged or proved, and certified and recorded". What does that actually mean?

    Thanks
     
  2. adjusterjack

    adjusterjack Super Moderator

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    You haven't provided the statute number and you've taken part of a sentence out of context. Give us the statute number and section.

    While you are at it, explain who you are in this situation and what's happening that has prompted the question. Details count.
     
  3. Adverse

    Adverse Law Topic Starter Member

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    442.360. Powers of attorney, how acknowledged and proved. — Every letter of attorney or other instrument containing a power to convey real estate, as agent or attorney for the owner thereof, or to execute, as agent or attorney for another, any instrument in writing conveying real estate, or whereby real estate may be affected in law or equity, shall be acknowledged or proved, and certified and recorded, as other instruments in writing conveying or affecting real estate are required to be acknowledged or proved and certified and recorded.
    --------
    I am attorney-in-fact for my Aunt via a Durable General Power of Attorney that includes the right to conduct real estate transactions. But, the "estate" attorney did not recorded any of the documents she executed. The original(s) are no longer available, so I'm asking if "acknowledged or proved, and certified and recorded" means anything other than recording the original.

    and since details count, he also did not record the Revocable Living Trust agreement, which gives the Successor Trustee the right to dispose of real estate after my Aunt's death . . . but it would appear that should have been recorded, too.
     
  4. flyingron

    flyingron Well-Known Member

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    Hold the phone. If your aunt is dead, you can not be her attorney in fact no matter what was recorded. POA dies with the principal.

    Now the trust is a different matter. But if you're the successor trustee, you should be able to record that yourself.
     
  5. Adverse

    Adverse Law Topic Starter Member

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    Correcting typos:

    Specifically, is there something the attorney who failed to record the originals can do to attest to the validity of the digital copies he retained?

    I'm asking because I had a situation where a professional surveyor failed to record a 1997 property survey, but was able to attest to the validity of a copy, and get it stamped and recorded in 2010.

    Surely this is not the first time an attorney has failed to record a POA or Trust agreement as required by Statute.
     
  6. flyingron

    flyingron Well-Known Member

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    What are you trying to get at? As I stated before, the POA is irrelevant to you now that the principal was dead.

    What makes you think the attorney had any obligation to you or to file these documents?

    If you're trying to get the trust issues resolved, take all the paperwork to a new attorney. If you are indeed the person who should be the successor trustee, he can get whatever documentation you need to take the actions you need.
     
  7. Adverse

    Adverse Law Topic Starter Member

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    So, is there a way to "verify", and record a revocable living trust agreement and a durable general power of attorney agreement if you do not have the original?

    It may, or may not, be relevant, but if a document can be verified via the notary's log/records, for the documents I am inquiring about, the attorney who drafted the documents was also the notary . . . and he has, at least, copies, if not the originals.

    The representative for the Successor Trustee is also having their legal department look into this, as they would not be able to dispose of real estate until the Trust is recorded.
     
    Last edited: Jan 8, 2022
  8. Zigner

    Zigner Well-Known Member

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    Please review the following, then tell me why you believe that the trust must be recorded in order for the trustee to conduct real estate transactions:
    Missouri Laws > Chapter 456 – Trusts and Trustees — The Uniform Trust Code » LawServer
     
  9. flyingron

    flyingron Well-Known Member

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    Again, you can't be POA for a dead person. Zig it right, neither POA nor trustees need any sort of recording in MO.
     
  10. Adverse

    Adverse Law Topic Starter Member

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    Update.

    Any document granting the power to conduct real estate transactions in the State of Missouri must be recorded, the same as documents transferring real estate. I became aware of that when the Title Company pointed it out when I attempted to sell a vacant lot for my Aunt, under a Durable General Power of Attorney. There are more properties that need to be sold.

    I took that up with the Successor Trustee, the trust department of the financial institution holding her investments, because the Trust document will have to be recorded if the Successor Trustee winds up having to dispose of real estate. They took it up with the attorney who drafted all of the documents, and, lo and behold, five years after drafting and notarizing them, and after claiming he did not know where they were, he informed the Successor Trustee that he has all the originals.

    Not that it matters, but my Aunt was taken, literally driven, to the Trust attorney by her financial advisor at the Successor Trustee's company five years ago, and he just didn't show up for work recently.

    I am awaiting word as to who is going to get them recorded, and hold them for safekeeping.
     
  11. Zigner

    Zigner Well-Known Member

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    A POA is not the same as a trust...not by a long shot.
     
  12. flyingron

    flyingron Well-Known Member

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    Again for the nth time.... you can not use a POA to act for a dead person. It doesn't matter how or where it is recorded. The authority ended when your aunt expired.
     
    Zigner likes this.
  13. army judge

    army judge Super Moderator

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    It appears this MO statute gives rise to much confusion.

    The matter is resolved on page 28 of the document referenced in the link below.

    I have excerpted the relevant portion of said page.

    https://missourilawyershelp.org/wp-content/uploads/2021/06/probate-resource-guide-updated-5-16.pdf

    ==============================================


    An aging parent may wish to give a durable power of attorney to a responsible
    adult child so that the child can act on the parent’s behalf and carry on routine
    matters in the event the parent is disabled or incapacitated. In many instances, this
    arrangement is far better than making the child the joint owner of the parent’s bank
    accounts and other property and assets.

    To create a durable power of attorney in Missouri, the document must state: “This
    is a durable power of attorney and the authority of my attorney-in-fact shall not
    terminate if I become disabled or incapacitated or in the event of later uncertainty
    as to whether I am dead or alive.” In many other states, the document must state in
    substance that “this power of attorney shall not be affected by subsequent disability
    or incapacity.”

    It is possible to create a durable power of attorney so that it will only go into
    effect when the principal is incapacitated or when some other stipulated event or
    condition occurs. This is ordinarily called a springing durable power of attorney.
    Revocation of Durable Power of Attorney
    The death of the principal revokes even a durable power of attorney, except for
    a third person relying on the power of attorney who does not know of the death.
    Also, a durable power of attorney may be revoked by the principal at any time,
    either orally or in writing. It is recommended that, when possible, the revocation be written.
     
  14. Adverse

    Adverse Law Topic Starter Member

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    442.360. Powers of attorney, how acknowledged and proved. — Every letter of attorney or other instrument containing a power to convey real estate, as agent or attorney for the owner thereof, or to execute, as agent or attorney for another, any instrument in writing conveying real estate, or whereby real estate may be affected in law or equity, shall be acknowledged or proved, and certified and recorded, as other instruments in writing conveying or affecting real estate are required to be acknowledged or proved and certified and recorded.

    &,
    That is how Clay County, Missouri, interprets it.

    &, as I posted above, the attorney who drafted the Durable General Power of Attorney, Trust Agreement, and several other aged-related documents, and that he notarized, discovered that he still has the originals, five years after they were executed, and after claiming for the last four months that he didn't have them.

    So, now it is just a matter of getting them recorded, so that the real estate people and County Recorders are happy.

    This question came about because the title company, which has a digital copy of the Durable General Power of Attorney, would not proceed with a real property sale until the original is recorded, and the County Recorder will only accept the original.
     
    Last edited: Jan 26, 2022
  15. Adverse

    Adverse Law Topic Starter Member

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    Granted, I have the power to conduct real estate transactions as the attorney-in-fact under the Durable General Power of Attorney, but, still, the original has to be recorded in Missouri in order to do so.
     
  16. army judge

    army judge Super Moderator

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    Have you investigated "guardianship", that is if it applies to the relative(s) in question.

    Or, as MO deems the more durable "conservatorship".

    Missouri Laws 475.060 – Application for guardianship — petition for guardianship requirements — … » LawServer

    Power of Attorney - Adult Guardianship - 417 Elder Law

    https://dsagsl.org/wp-content/uploads/2019/02/Guardianship-Packet-4.2015.pdf

    https://www.ssdmo.org/cms/lib/MO50000617/Centricity/Domain/109/Guardianship.pdf

    Guardianship in Missouri

    What Is an Adult Guardianship in Missouri? | St. Louis Estate Planning Attorneys




    An adult guardianship is far more comprehensive than a mere POA.
     
  17. Zigner

    Zigner Well-Known Member

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    NO, YOU DO NOT!
    The power of attorney expires upon the death of the grantor. Why can't you understand that?

    I see that you never actually clarified if your aunt is dead. Is your aunt dead?
     
  18. Zigner

    Zigner Well-Known Member

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    AGAIN, a trust is not the same. But hey, you go on about your business...you know it all.
     
  19. Adverse

    Adverse Law Topic Starter Member

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    Exactly. What I have been saying, maybe inartfully, is that the attorney-in-fact named in the Durable General Power of Attorney agreement has the power to conduct real estate transactions while the Settlor is living, and the Successor Trustee, named in the Revocable Living Trust agreement, has that power after the Settlor dies.

    Regardless of which is the case, the original documents granting that right must be recorded in Missouri (he said once again).

    I only know what I know because the other parties necessary to conduct real estate transactions, like title companies, closing companies, etc., insist on following Missouri Statutes, and I can't sell my Aunt's real estate without them. Neither could the Successor Trustee when it comes to that.

    & the legal people at the Trust Department of the financial institution named as Success Trustee agree, and have thus asked the attorney who drafted the documents to produce the originals, which he has kept for over five years, for whatever reason.
     
  20. Adverse

    Adverse Law Topic Starter Member

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    So, is the problem on this forum the inability to ask a question artfully, or the inability to read and understand what is being asked?
     

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