Rethinking Powers of Attorney in Real Estate Transactions

The Uniform Power of Attorney Act, adopted in 2006, was designed to address the divergence of various states from the original uniform act and to address problems identified by attorneys practicing in the area. One such problem was the refusal of parties to accept powers of attorney—although a client might execute a durable power of attorney as part of an estate plan to avoid a guardianship, parties would refuse to deal with the agent, thus necessitating a guardianship proceeding. The Uniform Act has now been enacted in some form in more than half of the states, including Texas. The author examines the Uniform Act and the Texas Act in the context of powers of attorney in real estate transactions.

She discusses common law rules relating to defective deeds, defective powers of attorney, and deeds executed by an agent under a defective power of attorney, as well as the effect that the Uniform and Texas Acts may have on the common law. The article concludes by recommending additional legislation to clarify the application of the Acts and to make them more compatible with solving the problems that may arise in the context of real estate transactions.