Guideline: FL Power of Attorney Affidavit
STEWART TITLE GUARANTY COMPANY’S GUIDELINES FOR ACCEPTING A POWER OF ATTORNEY IN CONNECTION WITH AN INSURED TRANSACTION IN FLORIDA
When reviewing a POA two main questions need to be answered:
1) Is the POA legally sufficient?
2) Can the POA be relied upon under the circumstances of the transaction?
IS THE POA LEGALLY SUFFICIENT?
1. It must contain specific language that it can be used to convey or mortgage real property or that it can be used to execute a deed or mortgage.
2. For it to be durable – it must recite that its use shall survive the incapacity of the principal. Simply titling the document as durable is not sufficient.
3. If the POA was executed on or after October 1, 2011, is effective immediately upon execution. If the POA was executed prior to October 1, 2011 and is a “contingent” or “springing” POA, obtain a physician’s affidavit that the principal lacks capacity.
4. It must contain two (2) witnesses and a notary acknowledgment.
5. If executed in another state, and the POA lacks witnesses, it must comply with the laws of the state where it was executed.
6. If insuring homestead property, the POA must have two (2) witnesses, even if it was executed in another state which does not require witnesses.
7. Verify the principal signed or initialed next to each grant of authority allowing the agent to make gifts or which impacts the principal’s estate plan.
8. If the POA is in a language other than English, obtain an English translation to be recorded with the POA.
9. You must obtain the original or a certified copy already recorded in Florida for recording prior to the instrument being insured.
10. Do Not accept a POA if title is held by the principal as trustee of a trust.
11. Do Not accept a POA if the attorney in fact is conveying the principal’s property to himself unless the POA gives the attorney in fact clear authority to do so.
12. If you reject the POA for use in the current transaction, provide written notice of your decision in writing within a reasonable time. Four (4) days is presumed reasonable.
13. Record an affidavit executed by the attorney regarding the validity of the POA and the agent’s authority, pursuant to F.S. 709.2119.
WHAT ARE THE CIRCUMSTANCES SURROUNDING THE POA?
1. The principal must have been competent at the time he or she executed the POA. Red flags which may indicate incompetency include:
A. Illegible signatures.
B. A claim that the principal is no longer competent to execute the deed or mortgage, yet the POA was recently executed.
Some competency problems can be resolved with the use of a competency affidavit executed by the witness to the POA. If the principal has been diagnosed with a mental condition, a physician’s affidavit should be obtained regarding the competency of the principal.
2. You must be careful that the POA was not fraudulently obtained. Transactions in which the POA is being used to either sell or mortgage property which has a great deal of equity are the transactions most likely to be subject to fraud. You must use every reasonable method to determine that the principal did in fact execute the POA, including contacting the principal directly.
Compliance with the underwriting guidelines contained herein in no way obligates Stewart Title Guaranty Company to issue any form or endorsement.
This guideline applies to the following form(s):