The State of Florida allows a power of attorney to be used by one person to act on behalf of another person in consummating real estate transactions. Called a durable power of attorney, this is a broad grant of power which allows an agent to act on behalf of a principal and to do anything which the principal could do unless the power of attorney contains limitations on the powers being granted. Florida law mandates that a power of attorney be created with the same formalities required of real estate conveyances in the state.
Florida law regarding a durable power of attorney for real estate transactions is set forth in Title XL, Chapter 709.08 of the Florida Statutes. The power of attorney must be in writing and notarized and filed of record with the county clerk's office in every county where the agent will be conducting business on behalf of the principal. Only a natural person who is 18 years of age or older and of sound mind, or a financial institution with trust powers and which has a place of business within the state and is authorized to do business in Florida may serve as attorney-in-fact, except that a nonprofit or charitable organization which has qualified as a court-appointed guardian prior to January 1, 1996 and which also holds an IRS 501(c)(3) exemption may also be appointed.
The person who executes the power of attorney is called the principal and the person to whom the power of attorney is given is called the agent or attorney-in-fact. A third party is anyone who relies upon the power of attorney in entering into transactions with the attorney-in-fact.
Special or Limited Power of Attorney
Sometimes it is necessary for a resident of Florida to appoint someone to act on his behalf in a particular real estate transaction, such as the purchase of a residence while the person wanting to make the purchase is in the military or otherwise unable to attend to the transaction. A special or limited power of attorney is the proper legal vehicle to accomplish this task as it allows the agent or attorney-in-fact to act on behalf of the principle and to sign any and all documents, including loan documents, on behalf of the principal. The power of attorney will be filed with the deed of conveyance as well as any deed of trust or other document filed with the deed records.
The authority granted in a power of attorney in Florida continues in full force and effect until one of three events occur: 1) the principal dies; 2) the principal revokes the power of attorney in writing and delivers the revocation to the attorney-in-fact; or 3) the principal is declared totally or partially incapacitated by a "court of competent jurisdiction" unless such court makes exceptions for the benefit of the principal.
The Florida Statutes provide a sample form for the power of attorney. However, there are several services available on the Internet where you can download a form for a small fee. You may also consult an attorney to draft the document.
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