06.5 Powers of Attorney

In the absence of actual knowledge or constructive notice derived from properly indexed instruments in the chain of title to the contrary, a title examiner may presume that an individual grantor who has conveyed property pursuant to a properly executed and recorded power of attorney, whether or not durable, was (a) competent to execute the power of attorney, (b) competent and alive at the time the deed was delivered, and (c) the power of attorney had not been revoked at the time the deed was delivered.

Comment 1. A deed or other conveyance of lands or of an estate or interest in land, made under a power of attorney, shall not be of any effect unless such power of attorney is executed in conformance with Title 14, Ch. 123 or enjoys reciprocity pursuant to Title 14 V.S.A. §3514 and Title 27 V.S.A. §305(b).

Comment 2. In the case of a deed or other instrument executed pursuant to a durable power of attorney, there is no requirement of competency at the time of the conveyance.

Comment 3. An attorney representing a purchaser or mortgagee from a grantor acting through an attorney in fact in a current transaction must establish: (a) that the power of attorney authorizes and empowers the attorney in fact to take the action required to convey title; (b) that the power is properly executed; and, (c) whether the instrument is a “durable power of attorney”. As to requirements for and effect of a durable power of attorney, see Title 14 V.S.A. §3508.

If the power of attorney is not “durable”, and is being used in a current transaction, an affidavit should be provided if requested and may be recorded. See 14 V.S.A. 3507(d).

Comment 4. The age of the power of attorney is not relevant to its validity unless the power of attorney expired by its own terms. See 14 V.S.A. 3502(d)(1).

Comment 5. An executor, administrator or guardian may not appoint an attorney in fact for the purpose of executing an instrument affecting an interest in real property. See Watkins’ Estate v. Howard National Bank & Trust Company, 113 Vt. 126 (1943), at page 133.

Absent evidence of authority to the contrary, a trustee, corporate officer, designated partner, or anyone else acting in an elected or appointive capacity may not appoint an attorney in fact for the purpose of executing a document affecting title to real property. A designated partner is one appointed under a written resolution or authorization to act on behalf of the partnership. A general partner may appoint an attorney in fact as to matters affecting only the interest of that general partner.

Comment 6. A person may accept a deed or other instrument signed by an agent by delegation, provided that (a) the power of attorney document includes language allowing the attorney-in- fact to delegate the attorney-in-fact’s powers; (b) the appointment of the agent by delegation is exercised pursuant to a document executed with the formalities of a deed, which makes reference to the original power of attorney; and (c) the document exercising the power of delegation and the power of attorney document are recorded in the same land records.

Comment 7. A photocopy or electronically transmitted facsimile of the POA may be relied upon to the same extent as an original. 14 VSA §4006(d) (post-2023) and 14 VSA §3513 (pre-2023).

Comment 8. Unless a trust instrument prohibits delegation of authority, a trustee may delegate the trustee’s duties and powers to an agent as provided in 14A VSA §807.

Comment 9. As to the validity of powers of attorney executed outside the State of Vermont, see 14 V.S.A. §4006(c) (post-2023) and 14 VSA §3514 (pre-2023) and 27 V.S.A. §305(b).

Comment 10. A military power of attorney containing a provision stating that the power of attorney is prepared pursuant to 10 U.S.C. § 1044b is deemed to be legally executed and is of the same force and effect as if executed in the mode prescribed by the laws of Vermont. See 14 V.S.A. §4006(c)(2) (post-2023) and 14 VSA §3502(e) (pre[1]2023).

History

March 29, 2000 Restated the language defining “knowledge” as being actual knowledge or constructive notice derived from properly indexed instruments in the chain of title. This concept is used in the first clause of Standards 6.2, 6.3, 6.4 and 6.5 Insert clause re leading phrase.

Obligations of an attorney accepting documents signed using a power of attorney were clarified in Comment 3.

Former Comment 4 was incorporated in Comment 1. Former Comment 5 was renumbered to Comment 4.

New Text was added to Comment 5 to explain the limitations on appointment of an attorney in fact by a fiduciary.

Comment 6 was added to describe when the designation of a substitute attorney in fact is effective.

September 26, 2008 Comment 3 was amended as follows: change to statutory citation from 14 V.S.A. §3051 to §3508; last paragraph amended and statutory citation added.

Amended comment 4 to add the words “unless the power of attorney expired by its own terms. See 14 V.S.A. 3502(d)(1).”