Florida Power of Attorney

Summer 2006 CSANews Issue 59  |  Posted date : May 28, 2007.Back to list

In a previous article regarding wills in Florida, I had indicated that it was not necessary to have a separate will (or a Florida will) to dispose of property owned in Florida. I stated that a will made in Ontario, or in any other jurisdiction, which disposed of all of one's property would be sufficient to encompass property or assets owned in Florida.

The subject of a "Power of Attorney" is completely different. The laws of Florida are very specific as to what is required to create a valid power of attorney which will be recognized in Florida. I propose to mention a few of the specifics to illustrate this point, but the bottom line is that a person wishing to create a power of attorney for use in Florida should consult a Florida attorney to have it prepared and explained. A lawyer in Ontario, for instance, is not qualified to advise on such a subject. His advice to a client should be "see a Florida lawyer."

To be effective, the document must be executed with the same formalities as are required for the conveyance of real property by Florida law. This means that the document must be witnessed by two persons and must be sworn before a notary public. There are certain Florida rules as to who the witnesses can be, and who can act as a notary public in the situation. Another requirement is that the document MUST contain the words, "This durable power of attorney is not affected by subsequent incapacity of the principal except as provided by s.709.08, Florida Statutes," or similar words that show the principal's intent that the authority conferred is exercisable notwithstanding the principal's subsequent incapacity, except as otherwise provided by this section. What in the world are they talking about??

Then there are the rules as to who can serve as the attorney in fact – the person named to be the attorney. If a person, he or she must be 18 years of age or older (notice, not 21 or older) and be of sound mind. Many people have their trust companies as their representatives but, to be a proper representative of a Florida power or attorney, the trust company must have a place of business in Florida, and be authorized to conduct trust business in Florida.

There are many more rules that apply to this particular exercise. To go over them all would bore you completely and would not assist you any further in understanding that the creation of a power of attorney for use in florida is very complicated. Rather than waste your money by paying someone without the proper credentials and ending up with a piece of paper that is useless, engage a Florida lawyer the next time you are in Florida, to prepare a proper document for you that will satisfy your wishes. As with buying insurance and failing to disclose all the facts (and therefore paying a premium for protection that is not there), do not spend your money on a document that will not be effective when you need it. Engage a legal practitioner in Florida who is qualified to do the job. Then, you will get value for your money.