What are the pros and cons of registering a power of attorney document?

1 answer | Last updated: Oct 04, 2016
A fellow caregiver asked...

Is a POA a public document and does it have to be registered with a State or County Agency to be valid? What are the pros and cons of registering this document?

Expert Answers

You're really asking three different questions about a power of attorney (POA) document, so let's take them one at a time. First, a POA is not necessarily a "public" document in the sense that it would be something that anyone and everyone has a right to see. It is a legal document made by the person who grants the power of attorney (the "grantor"). But it does not normally have to be officially recorded anywhere for it to be valid. (In most states, the grantor's signature must be notarized, and the notary will record the date of the notarizing and the name of the document notarized, but does not normally keep a copy of the document itself.) The only person (other than the person named as the "attorney-in-fact" who is to exercise the power) who has a right to see the document is someone who is relying on it, meaning someone who is being asked to accept the signature or other authorization of the attorney-in-fact, instead of the direct personal authorization (written or otherwise) of the person who granted the POA. Most institutions (and individuals, if they're smart) who do business based on a POA will ask to keep a copy of it for their records.

There is at least one situation, however, when a POA does become part of the public record, and that's when it is relied on to transact any kind of sale, loan, transfer, or other matter concerning title to real estate. In almost any such situation, the POA must be recorded at the county office (usually called the County Recorder or County Clerk) where all records pertaining to real property (land and buildings) must be recorded in order to be valid. Once the POA is recorded there, anyone may examine it.

Although there is no requirement to officially record a POA anywhere (except regarding land transactions, as mentioned above), it's not a particularly good idea for a POA to be kept secret from people who have an interest in it. Family members, in particular, should be aware of a POA (even if some of them might not like it) in order to avoid disputes over whether the attorney-in-fact has the right to be making decisions or conducting business for the POA grantor. If people close to the grantor are kept in the dark about the POA, a lot of doubt and mistrust can arise among family members about who is doing the right things, and who has the right to make certain important decisions.