Q: We represent a Seller. He is competent to sell his property but he was recently injured in a major car accident. He cannot write and cannot use a typewriter or computer; with extreme effort, he can just barely sign his name but anything else he writes is completely unreadable. He has not given anyone his Power of Attorney. Can we just sit down with him, have him read the questions, tell us his answers and then we fill out the disclosure forms for him? He would prefer that we do that and then he will sign everything. If we cannot do it, how can we help our Seller?
A: NO! The Seller’s duty to complete his disclosure obligations should only be performed by the Seller. No matter what the Agent’s relationship is with the Seller or the reasons why the Seller has difficulty completing the disclosures, if the Agent completes the Seller’s portions of the TDS (or any other Seller disclosure form), then there is a potential for the Seller to later claim that the Agent wrote down the wrong answers and/or that the Seller signed the form when it was blank and thus he never approved the Agent’s answers.
If the Seller cannot read the disclosure forms or is not capable of signing the disclosures, then there is a real question as to whether or not the Seller has the legal capacity to list and/or sell the Property and other steps are needed depending upon the circumstances. If there is any question as to the Seller’s capacity to list or sell, the Agent needs to review the situation with their Broker/Manager who can then obtain necessary guidance.
If, as is the case here, the only problem is the Seller’s handwriting, then the best practice is to have an adult, such as a relative or trusted friend of the Seller (anyone other than the Agent) be the person who serves as the scribe to write in the Seller’s answers. That individual and the Seller should sign a document that explains how the disclosures were completed and that document should then be attached to the disclosure forms and provided to the Buyer.
PRACTICE TIPS:
1. If you have any question as to whether the Seller has mental capacity issues, read the Weekly Practice Tip “Elder Law” and discuss the situation with your manager.
2. Under NO circumstances should the Seller’s Agent ever complete the Seller’s Disclosures. No matter what the excuse, if the Seller cannot or will not complete the required disclosures, the Seller cannot delegate the Seller’s duties to the Agent.
3. If the reason the Seller cannot complete the disclosures is that the Seller is blind, cannot read, is too forgetful or is physically unable to sign documents, then the capacity of the Seller to sell the property is questionable and no one should complete the disclosures without reviewing the entire situation with the title company and/or brokerage counsel.
4. If the Seller is otherwise competent to sell the property but the Seller’s handwriting is so bad that it cannot be read, then the Seller needs to have an adult relative or trusted friend (anyone other than the Agent) complete the disclosures for the Seller after which the Seller can then sign the forms.
5. The person chosen by the Seller, and the Seller, should sign the form which follows this Tip entitled Disclosure Regarding Completion of Disclosures. This form should be attached to the disclosure forms at the time the disclosures are provided to the Buyer and the attached Disclosure should be signed by the Buyer.
This Weekly Practice Tip is an attorney-client privileged document for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
Copyright 2019 Broker Risk Management 03/22/19
FORM FOLLOWS BELOW:
DISCLOSURE REGARDING COMPLETION OF DISCLOSURES
The undersigned understand, acknowledge and agree that [insert name of Seller] (“Seller”) has poor handwriting and cannot complete the Disclosure forms. The Seller can still read and understand the forms but his handwriting is so illegible that the explanations will be written by [insert name of relative or a trusted adult other than the Agent]. By signing his/her name to these documents, Seller acknowledges that he/she understands and accepts these documents such that all other Parties to this transaction can rely on his/her signature. This has been confirmed by [insert name of relative or a trusted adult other than the Agent] who has also signed this Disclosure.
Date: _______________ _______________________________________
Seller
Date: _______________ _______________________________________
[Insert name of person helping]
The undersigned Buyer(s) acknowledge receipt of this Disclosure.
Date: _______________ _______________________________________
Buyer
Date: _______________ _______________________________________
Buyer