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Can wife, with power of attorney, sign closing documents?

March 13, 2020
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

My husband owns a property in a living (revocable) trust, and he wants to sell it. I have a Durable Power of Attorney from him, can I sign the closing documents for him? He has been in and out of the hospital, and he may not be able to physically be present to sign.

- Leanne S.

Dear Leanne,

I recommend to all of my clients that they sign a Durable Power of Attorney, giving authority over their financial affairs to someone they trust. Good to hear he trusts you! The question will rest largely on how the power of attorney is worded. Typically, a power of attorney will not grant you the power to act in his place as trustee, even though you can act for him individually. Generally, the best way to address this is to be added as co-trustee to the trust, so that you can take actions on its behalf. That amendment to trust would need to be signed by your husband to give you authority, and it sounds like he would have the ability to do so. In a case where your actions are merely ministerial in nature (signing, at his direction), he could sign a delegation of trust authority to you for the sale of the property. As noted above, it would likely be more helpful to both of you to have the authority permanently bestowed on you through an amendment to the trust.

One other option may be available: Even though he may be hospitalized and unable to physically attend a closing, he could sign the documents in the hospital. All you would need is a notary (either a notary from the hospital or a "mobile notary" you could engage), and two unrelated witnesses. You will want to consult with the firm handling your closing regarding what they will require from you if your husband is unable to sign the documents.

Eric P. Feichthaler has lived in Cape Coral for over 30 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 18 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

Mr. Feichthaler can be reached at eric@capecoralattorney.com, or (239) 542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.

 
 
 

 

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