I have the Durable Power of Attorney for my parents who are age 83 and 73. They own their home. I am considering applying for a Reverse Mortgage for them, What do I need to do?
This is a great question and you picked a very good time to ask it. It is much better to find out what you need to do with a Power of Attorney (POA) before you get started than to try to figure it out as you go along. HUD has some very specific guidelines for the use of a POA and knowing them in advance is extremely helpful.
Firstly, let me print the HUD requirements on the use of POA’s straight from their manual:
III. POWER OF ATTORNEY/CONSERVATORSHIP GUIDELINES
Mortgage Loan Application
- Borrowers with legal competency:
- All borrowers must sign mortgage loan application.
- Mortgage loan application may not be executed by power of attorney.
- Borrowers lacking legal competency:
- Incompetent borrower may not sign the mortgage loan application.
- Court-appointed conservator or guardian may execute any necessary documents, including the mortgage loan application. The lender must provide evidence that the conservator or guardian has authority to obligate the borrower.
- An “agent” or “attorney in fact” holding a durable power of attorney specifically designed to survive incapacity and avoid the need for court proceedings, incapacity and avoid the need for court proceedings, may execute any necessary documents, including the mortgage loan application.
(1) To be valid, a durable power of attorney must be prepared when the “principal” is competent to understand the nature and significance of the instrument.
(2) The durable power of attorney must comply with state laws regarding signatures, notarization, witnesses, and recordation.
- Closing Documents
Power of attorney (durable or otherwise) may be used for closing documents. Any power of attorney must comply with State law and allow for the Note to be legally enforced in that jurisdiction.
- Counseling Session
For borrowers lacking legal competency, the counseling session may be conducted with an “agent” or “attorney in fact” holding a power of attorney, or with a court-appointed conservator or guardian.
The reason I put those guidelines there is that it is important to note that there is a distinction between borrowers who lack legal competency and those who do not.
If the borrowers are using a power of attorney for convenience (they do not lack competency), they are required to sign the application for the loan and attend the counseling and sign the counseling certificate.
If the borrowers are no longer competent, then the individual holding the POA may sign for the borrowers, but the POA must have been executed when the borrowers were competent.
HUD does not give specifics as to how this must be done but most lenders agree that the only way to verify competency is to have to borrower(s)’ attending physician write a letter stating that the borrower is or is not competent to understand the legal transactions and if incompetent, when was the onset of the illness, the date that the physician states for the onset of the illness that removed the borrower(s)’ competency was after the date of the POA, then the borrower was competent at the time the POA was executed, witnessed and notarized and therefore it would be allowed.
However, if the physician’s date for the onset of the illness is prior to the date of the POA or the original physician can no longer be contacted (as might be the case with death or retirement of the physician), and the borrower’s current physician did not receive the borrower’s medical records and therefore cannot write the letter as required to attest that the borrower was of full competency at the time of the signing of the POA, then to complete the reverse mortgage transaction, a court-appointed conservatorship guardianship would be required to complete a reverse mortgage transaction.
We encourage borrowers and families to review their individual circumstances with their loan originator in advance so that there are no misunderstandings and the transaction is a smooth as possible.
When handled correctly and all the documentation is available, a reverse mortgage with a POA does not have to be any more difficult than one without. you just need to know in advance what will be required and whether or not that information is readily available or be prepared for the alternatives.
Additional resources from our blog: