Signing for someone else: attorneys, executors and trustees

Everything below about signing on behalf of another comes from what actually happens rather than from what is supposed to.

The situations where it arises

Property transactions are frequently handled by somebody other than the owner: an attorney for a person who cannot act, an executor for an estate, or a trustee holding property for others. Each of those is a different legal relationship with different rules, different duties and different documentation. They share one feature: the authority to deal with the property has to exist and be demonstrable before anybody will complete a transaction.

Conveyancers, lenders and land registries all check that authority, and a defect in it stops the transaction rather than delaying it. The terminology and the mechanisms vary widely between countries, so the description here is general rather than specific to any system.

Powers of attorney

A power of attorney is a document by which one person authorises another to act, and its scope can be broad or limited to a specific transaction. In many jurisdictions a power intended to continue after the person loses capacity has to be created in a particular form and often registered.

A power created after capacity has already been lost is generally invalid, which is why these documents have to be made in advance. Where capacity is already lost and no valid power exists, a court appointment is usually the only route and it takes considerable time. Lenders often have specific requirements about accepting a power of attorney, so raise it at the start of a transaction rather than near completion.

Executors and estates

An executor or administrator derives authority from the will and from whatever formal grant the jurisdiction requires before a sale can complete. Selling before that authority exists is possible in marketing terms but not in completion terms, which sets the timetable for the whole transaction.

The useful part is this: where several executors are appointed, the requirements about who must sign vary, and a missing signature invalidates the transfer. Executors owe duties to the beneficiaries, which includes obtaining a proper price and being able to justify the decision taken. Keeping a record of the marketing, the offers and the reasoning behind the acceptance protects the executor as well as the estate.

Trustees and joint owners

Where property is held on trust, the trustees hold the legal title and their powers come from the trust document and from general law. Trustees typically must act together and in the interests of the beneficiaries rather than in their own, which constrains what they can agree.

On an ordinary week, joint owners are in a related position, since a sale usually requires all the legal owners to sign whatever their private arrangements are. Where one joint owner will not cooperate, the remedy is usually an application to a court, and that is slow and expensive.

These structures are technical and vary between jurisdictions, so specific legal advice rather than general reading is essential.

The practical checks

Anyone relying on a power or a grant should expect to produce the original or a certified copy and to prove their own identity thoroughly. Anti-money-laundering checks apply to the person signing as well as to the person on whose behalf they sign. Where funds are being received, the destination account must be consistent with the authority, and conveyancers are cautious here for good reason.

Do not assume a document created abroad will be accepted without further steps, since cross-border recognition often requires formalities. Raise all of this at the point of instructing rather than later, because these are the issues that stop a completion on the day.

Adjust the size of it until it is something you would actually do tired.

Acting properly

Somebody acting for another should keep the transaction at arms length, take advice, and document why each decision was made. Selling to yourself or to a connected person creates an obvious conflict, and in many systems it requires specific authority or court approval.

Keep the money separate, account for it properly and do not use the property or the proceeds for your own purposes. Where you are unsure whether you have authority for a particular step, ask before taking it rather than seeking approval afterwards. This is general information about a complex area, and anybody acting for another person should take advice from a qualified solicitor.

The takeaway

Establish the authority at the start, expect to prove it thoroughly, and document every decision taken on somebody else behalf.

Small and repeatable beats ambitious and abandoned, almost every time.