Powers of Attorney
A power of attorney is defined as a writing by which the party signing the power of attorney appoints another to be his agent or attorney-in-fact. This empowers the appointed party to act for him, either in all general matters of business or especially to do some specified act or acts.
However, since using a power of attorney means that the needed signature will be written by a substitute person, even a written power of attorney meeting all the requirements of Florida’s statutes might not be accepted if there is any concern that the principal does not authorize the signing or that the power of attorney may have been revoked or simply because of requirements imposed by third parties. A power of attorney can be refused without justification or reason.
Also, the principal’s mental incompetency or disability will revoke the authority granted to the agent unless the power of attorney document contains the language required by Florida’s statutes to create what is known as a durable power of attorney. Death of the person executing the power of attorney automatically revokes the power of attorney even if the appointed agent does not know of the death.
Real Estate Power of Attorney
In a real estate transaction signatures will be needed on a wide range of writings, such as listings and sales contract, disclosure forms, affidavits, the transfer deed, and loan documents. In most situations, the use of a power of attorney is acceptable. If a power of attorney is to be used on loan documents, the lender will need to approve the use of a power of attorney. Many times a lender will require the borrower to sign the note themself or the lender will have other restrictions or requirements for the use of a power of attorney.
Limited Power of Attorney
A limited power of attorney gives the attorney-in-fact (the party who is given the power to act on behalf of the principal) authority to do a specific act or acts. One might use a limited power of attorney to appoint someone to handle the sale of a house in another state. The powers would be limited to those acts required for the sale.
Durable Power of Attorney
Powers of Attorney, whether general or limited, terminate when and if the principal becomes mentally incapacitated. For many people, this is the primary reason they would want a power of attorney. Florida law provides for a “Durable Power of Attorney” if the document contains language dictated by the Florida statute. With a Durable Power of Attorney, the person appointed can continue to act even though the principal has become incapacitated. This can avoid the expense and supervision of guardianship court proceedings.
How to sign when acting as a attorney-in-fact
The attorney-in-fact will always want it to be clear from the signature that they are not signing for themselves but instead, signing for the principal. If the attorney-in-fact only signs their own name, they may be held personally accountable for whatever was signed. The signature should clearly convey that it is signed in a representative capacity. Though lengthy, it is best to sign as follows:
“Mary Smith by Hector Miller, her attorney-in-fact”
In this example, Hector Miller is the attorney-in-fact, and Mary Smith is the principal.