Out-of-State Powers of Attorney Should be Reviewed
Living in Florida, a destination for vacationers, those with second homes, and retirees alike, we tend to get more people coming into the state to live than leaving it. With that migration comes legal issues to deal with, especially for people who may have set up their legal and estate affairs in different states.
Foreign Powers of Attorney
One issue that can become problematic are powers of attorney (POAs). Often, people will have POAs that are enacted or entered into in other states. Then they move to Florida. Although they may think their POA is still legally binding and valid, it’s not safe to assume that it automatically is.
Florida does have laws that dictate when a POA executed in another state will be valid and binding here. The law requires that the POA be executed with the same formalities as that which is required under Florida law—specifically, that there be two witnesses, and that the signatures are notarized.
People coming from states with similar requirements (or more stringent) should be OK. But many states don’t have such formalities, and if you are moving to Florida from one of those states, don’t assume your POA is legally binding here.
There is an exception—if your POA was executed in compliance with the laws of the state in which it was executed, which were in force at the time the POA was executed, the POA should be enforceable in Florida. But this means that the laws of the foreign state that existed when the POA was executed must be examined—for older POAs, in states where laws have changed, this can create some confusion.
Real Property and Homestead Issues
POAs that deal with real property may be a bit more difficult. Florida law says that to mortgage or encumber homestead property, an agent using a POA needs to have the POA executed the same way a deed is executed. There are no exceptions for compliance with the laws of a foreign state.
Additionally, Florida has a specificity requirement for POAs. Contrary to popular belief, a POA that lets an agent “conduct any and all business,” or which has other broad, general language, may not be enforceable. But other states may allow such language. A POA executed in a foreign state where such generality is allowed may not satisfy Florida’s specificity requirements.
As an aside, this general language is often found in store-bought POAs or “do-it-yourself” legal websites. Using these kinds of forms could lead to your POA being useless.
If you are moving here from another state with a POA, it is best to have the POA re-drafted, if possible, or at least reviewed. Certainly, there may be cases where re-doing a POA may not be possible, but at the very least, a legal consultation can tell you how effective your foreign POA will be here in Florida.
If you have estate documents and want them reviewed, especially if you have recently moved to Florida, get legal help. Contact Tampa business, asset and probate attorney David Toback to discuss a comprehensive estate plan.