Stuart Stone
Apr 20, 2013 7:23 PMOk, I'm going to be a bit of a boring fart & drift back towards the topic of this thread with a little tale of a mortgage contract I signed about 10 years ago...
In my ignorance of times past, I granted power of attorney to the mortgage company. In my greater ignorance/stupidity, I managed to screw up & grant an irrevocable power of attorney to the mortgage company, allowing them to fill in the blanks on any document, acting as me.
From Black's Magic 6th ed:
Power of attorney. An instrument in writing whereby one person, as principal, appoints another as his agent and confers authority to perform certain specified acts or kinds of acts on behalf of principal. Complaint of Bankers Trust Co., C.A.Pa., 752 F.2d 874, 885.
An instrument authorizing another to act as one's agent or attorney. The agent is attorney in fact and his power is revoked on the death of the principal by operation of law. Such power may be either general (full) or special (limited).
Irrevocable. That which cannot be revoked or recalled. Commissioner of Internal Revenue v. Strong Mfg. Co., C.C.A.Ohio, 124 F.2d 360, 363.
Revocable. Susceptible of being revoked, withdrawn or cancelled; e.g. revocable letter of credit.
Revocation: The withdrawal or recall of some power, authority, or thing granted, or a destroying or making void of some will, deed, or offer that had been valid until revoked. In contract law, the withdrawal by the offeree of an offer that had been valid until withdrawn. It may be either general, all acts and things done before; or special, revoking a particular thing. Revocation by act of the party is an intentional or voluntary revocation. The principal instances occur in the case of authorities and powers of attorney and wills. In contract law, the withdrawal of an offer by an offeror; unless the offer is irrevocable, it can be revoked at any time prior to acceptance without liability.
In criminal law, may refer to termination of a probation or parole order because of either a rule violation or a new offense, and forcing the offender to begin or continue serving his or her sentence. A revocation in law, or constructive revocation, is produced by a rule of law, irrespectively of the intention of the parties. Thus, a power of attorney is in general revoked by the death of the principal.
.........
This has raised a number of questions for me:
1. Does the granting of a power of attorney deem me to be legally incompetent?
2. As I have granted an irrevocable power of attorney to someone else, do I retain a superior power or have I more likely declared myself legally incompetent to instruct anything?
3. How do I replace/fire/instruct the trustee if I have granted an irrevocable power of attorney?
4. How do I determine what securities and or other documents/instruments that they have created in the name as power of attorney, if I have been declared incompetent?
5. If someone has profited from a power of attorney in the name that I have granted to them, who is entitled to the benefits?
6. If I have signed away the power of attorney & the benefits, what rights do I retain as grantor/credit provider, especially if I am deemed to be legally incompetent?
7. How can the irrevocable power of attorney be removed if the one granted power of attorney may have acted against the wishes or best interests of the grantor?
8. Following the maxim: �As it is done, so it shall be undone�, how does one revoke or otherwise remove an irrevocable power of attorney?
9. OR, is this all irrelevant because better courses of action exist?
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