Power’s of Attorney (“POA”) can be powerful tools in any legal transaction, especially in the case of real estate transactions when the owner or borrower in a real estate transaction are: 1) physically unavailable to attend a closing and sign closing documents; or 2) incompetent to understand and sign closing documents. A POA can also be a double-edged sword that can be used to perpetrate fraud, undue influence, impersonation, and elder abuse, to name only a few abuses, that can cause a real estate transaction to fail. For these reasons, a transaction involving the use of a POA needs to be considered and evaluated carefully by the title company and the use of a POA needs to be discussed with the title company as soon as it is being considered for use. In Florida, POAs are addressed in Chapter 709 of the Florida Statutes and expressly speaks to: 1) how to lawfully create a POA in Florida as well as the legality of the POA; and 2) use in Florida of POAs created in another state or country. Below is an overview of considerations when using a POA in a real estate transaction.
Homestead Property
Expressly authorizes Attorney-in-Fact can sell and convey;
2 Witnesses Required;
Acknowledgment required; See Fla. Stat. 709.2105(2) &
Record POA in the Public Records See Fla. Stat. 695.01.
Non-Homestead
Expressly authorizes Attorney-in-Fact can sell and convey;
In-State -- 2 Witnesses Required;
Out-of-State -- Complies with requirements of laws of State of Creation of POA, which may require a legal opinion;
Acknowledgment required; See Fla. Stat. 709.2105(2) &
Record POA in the Public Records See Fla. Stat. 695.01.
POAs Created In Another Country
Expressly authorizes Attorney-in-Fact to sell and convey;
2 Witnesses Required;
Acknowledgment Required; &
Translation (if necessary) &
Record POA in the Public Records See Fla. Stat. 695.01.
DISCLAIMER
This material is provided for informational purposes only and does not constitute legal advice. The information contained herein is not intended to create, nor does it create, an attorney-client relationship. The user should not act or rely on any information contained herein without seeking the advice of a competent attorney licensed to practice in your jurisdiction for your particular problem.
