NJ, Durable Power of Attorney, Recording with county clerk
My wife and I recently created Durable Power of Attorney documents (naming each other as the designee). They have been signed, witnessed, and notarized. The document instructions (prepared using LegalZoom) indicate that they should be recorded with the county clerk. When I called the office they indicated that recording is only necessary if the designee is going to conduct real estate transactions on my behalf (or hers). We did include real estate in the powers listed, but our thinking here was really about the property we currently have. Both of us are already listed on the deed for the house and that has been recorded already. So...
1. Can one of us already take action on the deed without the other (regardless of the PoA)? Or is the PoA required to enable one of to act alone?
2. If we don't record the PoA is the remainder of the document still valid (assuming the real estate clause is not valid until recorded)?
3 Answers from Attorneys
for real estate you need the POA to act for the other party.Yes the the POA is still valid.
While the POA allows either to sign for the other, for Deed transfers it should be recorded so there is no question of the authority to sign. For other than real estate purposes, even copies of the document are sufficient. I usually give my clients copies marked "Certified To Be A True Copy" so the original is preserved and those who might need a copy (like banks, brokerage firms, etc.) can have one.
Unless the other party is unavailable or lacks capacity to sign a real estate document that has to be recorded, it is not necessary to record a POA before that. It is also not necessary to record the POA just to use it. The purpose of a POA is to allow another person to act on behalf of a person who has become incapacitated. For example, if bills have to be paid or other financial actions have to be taken, the POA allows someone to take care of those matters. The POA doesn't have to be recorded in order to use it.
This is one of the problems with getting a POA from an internet service or pre-printed forms. You are not given proper information on how to use it, and you can't be sure that it actually covers the situations for which it is needed. Did the LegalZoom process also guide you through naming successor agents, in case you or your wife would not be able to act for the other when it becomes necessary? In such a case, you would have created the POA for nothing, since no one would be able to act.
If you have any doubts or questions, you are better off consulting a local lawyer who routinely helps people with POAs, and if necessary, even have the lawyer prepare a new one. This will save problems that may not be fixable later.
THIS RESPONSE IS NOT LEGAL ADVICE, SINCE I DO NOT HAVE ALL OF THE INFORMATION THAT WOULD BE REQUIRED, AND I DO NOT HAVE A REPRESENTATION AGREEMENT WITH YOU.
* If the answers to your question confirm that you have a valid issue or worthwhile claim, your next step should almost always be to establish a dialog with a lawyer who can provide specific advice to you. Contact a lawyer in your county or township.
* Another reason for contacting a lawyer is that it is often impossible to give a good answer in the Internet Q&A format without having more information. The unique circumstances of your situation and things that you may not have thought to mention in your question may completely change the answer. If you want to be sure that you have a complete answer to your question and an understanding of what that answer means, establish a connection with a lawyer who practices in the area of your concern.
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