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Can I use a power of attorney?

QUESTION:

Mort and I are planning to sell our home. We've been happily married for 50 years, and his health isn't good. Can we use a power of attorney so he doesn't have to sign anything?

ANSWER:

A power of attorney is defined as a writing by which the party signing the power of attorney appoints another to be his attorney. 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. In order that the power of attorney can be recorded in the county records where the property is located, the power of attorney must be acknowledged before a notary. The power of attorney is recorded so that the agent's authority to sign the deed will be publicly known and also to restrict voluntary revocation by the principal.

In a real estate transaction, signatures will be needed on a wide range of writings, such as the listing and/or contract, disclosure forms, affidavits, the transfer deed and loan documents. In most situations, the use of a power of attorney will be acceptable.

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if there was any concern that the principal does not authorize the signing or that the power of attorney may have been revoked.

Many times, a lender or other party being asked to accept a substitute signature simply cannot do so because of requirements imposed on them by third parties. It is important to remember that a power of attorney can be refused without justification or reason. You can increase the chances that you will be allowed to sign Mort's name for him on real estate documents by having a power of attorney prepared that will at least meet the legal requirements for signing a sales contract and a warranty deed.

Mort'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. I hope you and Mort are happily married for another 50 years.

This information is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.

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