Legal Updates

A notarized power of attorney in real estate given to protect the right of another is nonrevocable even upon demise of the grantor

February 13, 2022

In 1960 a man signed an irrevocable power of attorney in which he undertook to transfer real estate for the benefit of his five sons and five grandchildren and for decades thereafter the parties acted as if each had received a tenth of the land. Two of the grandchildren contended that according to the power of attorney they deserve a larger share.

The Court dismissed the lawsuit for filing decades after the power of attorney was granted, but also found that even on the merits the land should be divided equally between the children and grandchildren. When a power of attorney is given "to secure the right of another person" it is an "irrevocable power of attorney" that is specific and refers to a defined third party in relation to a specific asset. An irrevocable power of attorney for real estate granted in favor of a person in connection with a property, can not be revoked except by a Court decision and does not expire on the demise of the grantor of the power of attorney. The interpretation of a power of attorney will be as a contract is interpreted and when it is not possible to interpret from the text, the circumstances of its writing must be examined in order to understand what the power of attorney giver intended. The conduct of the parties after the conclusion of the agreement can also indicate how the parties interpreted the document in real time. Here, the parties have all behaved over the years as if the land had been divided equally among all and so this is the correct interpretation.