Legal Question in Real Estate Law in California

Re: Homestead

In California the homestead act now applies automatically, so y0u do not need to file any papers.

Re: Homestead

A "durable power of attorney" isn't a person; it's a legal instrument. The holder of a durable power of attorney isn't really an agent (although there can be a lot of similarity in the roles), he or she is called an "attorney in fact." I suppose you know this, but others who read through these questions and answers might not.

Prior to 1982, an attorney in fact could not sign a declaration of homestead; it had to be executed personally by the owner or spouse. In 1982, a new declared homestead law went into effect, and attorneys in fact are now specifically authorized to execute homestead declarations on behalf of their principals. See Code of Civil Procedure section 704.930(b)(4).

Now, with regard to forms. I think most homesteads are declared using pre-printed forms, although I have also seen custom lawyer-created declarations. In either case, I would think that any requirement to indicate that the form was signed by an attorney-in-fact under a power of attorney for that purpose could be met by merely adding a couple of words on or near the signature space, so that it reads, "Mary Roe, attorney-in-fact for John Doe" or whatever is appropriate in view of the printing already on the form.

Since the signature will have to be notarized, I'd suggest selecting your notary in advance and discussing the technical requirements for signature of a particular form by an attorney-in-fact.

Finally, since theCounty Recorder will also have to take official action by recording the document after it's signed, you might want to ask whether that office has any particular requirements respecting instruments executed by attorneys-in-fact.