A POA No-No

April 14, 2016 § 2 Comments

An elderly couple shuffles into your office After exchange of pleasantries, the wife explains that the husband has been diagnosed with dementia, although he is still competent at this point. The two of them want the wife to have power of attorney (POA) so that the wife can execute deeds and other documents necessary to deal with husband’s business when he is no longer competent to do so. One thing she specifically mentions is that they would like to sell their home in the country and move into town.

You have your secretary draft a durable POA per MCA 87-3-101, et seq. using the forms in your computer, let them be executed, and send them on their way. Did you cover all the bases?

Look at MCA 89-1-29. The very last sentence, added in 2008, reads this way: “All powers of attorney authorizing any conveyance, mortgage, deed of trust or other incumbrance upon a homestead shall designate an attorney in fact other than a spouse and shall comply with the provisions of Chapter 3 of Title 87.” [Emphasis added] Chapter 3 of Title 87 includes all the statutes bearing on POA’s.

Since homestead was specifically mentioned (the home in the country), you should have explained that you must also do a POA for a child of theirs or some other trusted person for sale of the homestead. As for the non-homestead property, the wife as POA would legally still be able to convey it without participation of a third party. The proscription applies only to homestead.

A caveat: Senate Bill 2574, the “Mississippi Uniform Power of Attorney Act” has passed the Senate and gone on to the House. Unless and until it changes the law on this point, the current 89-1-29 controls.

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