I headed my Blog of 17th January “Divided By A Common Language” and of course it was about the different meanings that words have in “American English”, and “English English” – specifically, legal words.
Of course it is not only the words that differ, in fact the entire legal systems and cultures are completely dissimilar in the two Countries. In that blog I gave a rash promise to return to the topic in February. – So, nearly as good as my word in early March, here is Blog No Two.
One of the most common tasks facing a Notary is to witness and authenticate the execution of Deeds of Power of Attorney signed/executed in England for use in foreign Countries. In the case of land purchase or sale most countries have a legal system where qualified Lawyers control the land transfer process. In the USA however it seems that the process is largely in the hands of Realtors (Estate Agents) and Insurance Companies. There trained Lawyers get called in if things go wrong, but otherwise are unlikely to be involved.
I am beginning to suspect that when an English person tells their US Realtor that they need to execute their Deeds in England, whilst the Realtors know that a Power of Attorney is needed, they might not have the additional legal knowledge to draft a wording which is actually correct or appropriate. If you are a US based lawyer reading this and have a comment please let me know your views on this.
This year in respect of a straightforward sale in USA Tennessee the Power of Attorney wording emailed to me was headed SPECIFIC POWER (which means presumably, limited in scope to enable dealing with a single purpose) and was stated to relate to a specific sale of a specific plot of land.
Then later the wording said that the power of the Attorney was to include the sale proposed but was NOT limited to it. So a General Power of Attorney after all?
What seems even stranger is that the Deed then went on to declare itself a “Durable Power of Attorney” under the relevant Tennessee laws. Broadly speaking, what in England is an “Enduring” or “Lasting” Power of Attorney. Really? Does the Estate Agent truly wish to have the responsibility of this transaction in the event that the signatory should lose mental capacity and can no longer be contacted to give coherent instructions? I doubt it.
The Deed finished by stating that the terms of it would remain in force until formally revoked by the Donor such revocation to be recorded in the register offices of Knox County. The Realtor has made no provision for such revocation ever to be recorded, there is no intention that this will happen
1 that, according to my textbook, there should be two additional witnesses in the room when a Deed for Tennessee is executed before a foreign Notary. No suggestion was made by the Realtor that this should be done
2 that the wording of the Deed refers to the Attorney’s authority as including BUT NOT BEING LIMITED to the Realty work when in fact the client certainly did wish that authority to be so limited
3 That the client had earlier given much thought to the appointment of his Durable Attorney to look after his affairs in the event of becoming mentally incapable – now was being asked, for one simple sale, to grant a deed stated to be effective after mental capacity is lost. Query does this operate to revoke or supersede the earlier appointments? (If so, the earlier one would not be automatically reinstated by the eventual revocation of today’s deed)
4 The Deed states that it will remain in effect after the Realty purpose is completed, until formal revocation. This is not in accordance with the clients’ wishes or requirements.
Postscript – Since the case described above, I have seen a further deed, in this case for Florida and again prepared by an Estate Agent not a lawyer: – it is broadly similar, but this one states that it is irrevocable and that even the DEATH of the Donor would not revoke it. Life after death, by proxy. What is the saying – only in America?