Attorney-in-fact

Key Takeaways

• An attorney-in-fact draws authority from a written power of attorney, not from a law license, and does not have to be a lawyer.
• In Washington a power of attorney must be signed and dated by the principal and then either acknowledged before a notary or attested by two qualified witnesses under RCW 11.125.050.
• A deed signed by an attorney-in-fact still has to meet RCW 64.04.020: in writing, signed by the party bound, and acknowledged before an authorized officer.
• An attorney-in-fact acting under a power of attorney without compensation is exempt from Washington real estate licensing under RCW 18.85.151(2).

What It Means

An attorney-in-fact is a person a property owner names in a written Power Of Attorney to act in the owner's place. The owner who signs that document is the Principal. The title misleads almost every student the first time they see it: attorney here means agent, and the person named needs no law license at all. A neighbor, an adult child, or a business partner can serve.

What the attorney-in-fact may do depends entirely on what the document says. A power of attorney can be narrow, covering one closing on one parcel, or broad enough to cover buying, selling, leasing, and mortgaging real estate. Washington's Uniform Power of Attorney Act spells out what a general grant of real property authority carries, and the list is wide: acquiring, selling, conveying, quitclaiming, encumbering, subdividing, leasing, and managing the principal's real property.

Two limits matter in a live transaction. The authority has to exist in writing before the attorney-in-fact signs anything, and the signature has to trace back to that document, which is why escrow asks to see the power of attorney itself before closing. Brokers do not draft these documents. Drafting is legal work, and stepping across that line is the unauthorized practice of law.

How It Works in Washington

Washington runs powers of attorney through the Uniform Power of Attorney Act, chapter 11.125 RCW. Under RCW 11.125.050 the document must be signed and dated by the principal, and the signature must either be acknowledged before a notary public or attested by two or more competent witnesses who are not the principal's home care or long-term care providers and are not related to the principal by blood, marriage, or state registered domestic partnership. RCW 11.125.270 lists what a general grant of real property authority includes, from selling and conveying to encumbering, subdividing, and leasing. Whatever the attorney-in-fact ends up signing still has to satisfy RCW 64.04.020, which requires every Deed to be in writing, signed by the party bound, and acknowledged before a person authorized to take acknowledgments.

Licensing is the other half of the picture. RCW 18.85.151(2) exempts a duly authorized attorney-in-fact acting under a power of attorney without compensation, and RCW 18.85.151(3) separately exempts an attorney-at-law in the performance of the practice of law. Take a fee for brokerage work and the first exemption is gone. The license law and the rules built on it are published by the Washington State Department of Licensing.

Example

Marisol Trejo owns a house in Spokane and will be in Chile for six weeks when her sale is set to close. Before she leaves she signs a power of attorney naming her brother Diego as her attorney-in-fact, with authority to sell and convey that specific parcel. She signs and dates it in front of a notary, which satisfies RCW 11.125.050. The accepted offer is $415,000 with $8,000 in earnest money. On closing day Diego signs the statutory warranty deed as Marisol Trejo, by Diego Trejo, her attorney-in-fact, and escrow keeps a copy of the power of attorney in the file. Marisol, not Diego, is the Grantor. The deed conveys her interest, and Diego's signature is only the mechanism. The listing broker did not draft the document, did not notarize it, and did not advise Marisol on its wording. She got it from her own attorney. If you have never watched a signing table run, the walkthrough in our guide to your first real estate closing shows where that signature block sits in the packet.

Common Mistakes and Exam Traps

• An attorney-in-fact is not an attorney-at-law. RCW 18.85.151 exempts them in two separate subsections, and only the attorney-at-law is a lawyer.
• The principal stays the grantor on the deed. The attorney-in-fact signs, but the interest conveyed belongs to the principal.
• The word without compensation carries the exemption. An attorney-in-fact who takes a fee for brokerage work loses the RCW 18.85.151(2) exemption and needs a license.
• A power of attorney is not a listing agreement. It grants authority to act, and it does not create any right to a commission.