Powers of Attorney
Power of Attorney
Although there is considerable flexibility in the form of the exercise of a power of attorney (see Crocker's Notes on Common Forms, Little Brown and Company, (Seventh Edition, 1955), §351, it seems that the power of attorney itself must be executed and given by the principal. That is, the power, once given, must be exercised as the act of the principal and not that of the agent. For example, Principal gives Agent authority to do certain acts. In exercising the power the agent gives the following document:
"I, Agent, attorney for Principal, sell the property . . ."
The above form is defective. But the following form would be acceptable:
"I, Principal, acting through Agent, sell the property . . ."
In this regard, "When a sealed instrument is executed by an agent or attorney, for the principal, the strict technical rule of the Common Law, which has never been relaxed in England or in this Commonwealth, requires that it be executed in the name of the principal in order to make it his deed."—Abbey v. Chase, 6 Cush. 54.
"Where a sealed instrument is to be executed for a party by his attorney, such instrument should be written exactly the same as if it were to be executed by the party himself, but the signature should be 'A.B. by C.D.,' and a reference should be made either in the instrument or after the signature to the power of attorney and should state where it is recorded."—Crocker's Notes, §348. (Emphasis added).
There is flexibility regarding the signature used on the instrument purporting to exercise the power. Crocker:Section 351:
Though "Principal by Agent" is the proper form of signature, other forms may not be invalid, the material points being that the deed should be the deed of the principal and not of the agent, and that the name of the principal should in some way appear in the signature. Thus a deed purporting to be the deed of A.B., and signed "C.D. for A.B.," was held to be well executed as the deed of A.B.Mussey v. Scott, 7 Cush. 215. But a deed beginning "I, C.D.," or I, C.D. as attorney for A.B.," or "I, C.D. by virtue of a power of attorney from A.B.," and signed "C.D." or "C.D., attorney for A.B.," will not be good as the deed of A.B. Copeland v. Mercantile Insurance Co., 6 Pick. 198, Elwell v. Shaw, 16 Mass. 42; Fowler v. Shearer 7 Mass. 14. See also Kimball v. Tucker, 10 Mass. 192; Seaver v. Coburn, 10 Cush. 324.
A proper execution would be as follows:
by /s/Attorney in Fact
Whether, in the above, the words "Principal's Name" must be in the handwriting of the attorney in fact, or whether it can be, as in the case of a deed executed by a corporation, simply typed. The following may shed some light on the answer:
"[I]f the written signature of a person is required by law, it shall always be his own handwriting . . . ." G.L.c. 4, §7, Clause 38. (Emphasis added). "While [a] statute requiring "written signature" must be construed to mean that [the] signature should be in handwriting of the person signing it, . . . [the] same result does not follow where [a] statute merely requires that [a] paper be signed by [a] person, but in such later case . . . [the instrument] may be signed . . . by printed, stamped or typewritten signature, if by any methods of signing he intended to authenticate paper as his act." Annotation ofIrving v. Goodimate Co. 320 Mass. 454, 70 N.E.2d 414 (1946). G.L.c. 183, §1 requires that a deed be "executed." It would seem that the word "executed" is not limited to a handwritten signature, as it is a relatively broad term.
Whenever a power of attorney is used it should be accompanied by an affidavit under G.L.c. 201B, §5. Although the affidavit provided for under §5 of the statute is conclusive, the statute, under §4, is self-executing:
- The death of a principal who has executed a written power of attorney, durable or otherwise, shall not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the death of the principal, acts in good faith under such power. Any such action so taken, unless otherwise invalid or unenforceable, shall bind a successor in interest of the principal.
- The disability or incapacity of a principal who has previously executed a written power of attorney that is not a durable power of attorney shall not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the disability or incapacity of the principal, acts in good faith under such power. Any such action so taken, unless otherwise invalid or unenforceable, shall bind the principal and his successor in interest.
Note, prior situations involving powers of attorney may not have an accompanying affidavit because prior to 1978 neither G.L.c. 201B, §5 (effective September 20, 1981) nor its predecessor, G.L.c. 201, §50 (effective January 1, 1978) requiring such an affidavit was law.
An agent cannot delegate his authority without the assent of the principal, although delegation might be implied if subagents must necessarily be employed (such as in the case of accountants, attorneys or other professionals who perform services which the agent cannot personally perform). See Crocker's Notes on Common Forms, supra, §707. Although it might be convenient to have the local attorneys perform the acts of foreclosure (entry, affidavit, etc.), the acts performed would not appear to be of the kind that the agent could not personally do. Moreover, an attorney in fact breaches a fiduciary duty when he conveys the property to himself pursuant to the power of attorney. Gagnon v. Coombs, 39 Mass.App.Ct. 144 (1995). This is true regardless of the consideration paid.