Is my Durable Power of Attorney still valid if I move to Florida?

Florida has many transplants from other states and it is very common for people from another state to ask whether their Durable Power of Attorney (DPOA) will still be good in Florida.  The answer is – maybe.  The better answer is – let me take a look at it before I can tell you whether you can use it in Florida.  I know you think, “that’s just a way for an attorney to make more money”, but that is not the case.  An attorney cannot tell you, for certain, whether the DPOA you bring from another state is usable in Florida without looking at it to make sure it meets Florida requirements.  True, our statute pertaining to DPOA’s does state that if it is valid from the state it came from, it is valid in Florida.  However, there are some things that it absolutely cannot be used for if it does not meet Florida requirements.

Durable Power of Attorney Florida

For instance, in order to use a DPOA to sell real estate in Florida (meaning, the person who owns the property cannot sign the deed to transfer the property to the new owners, and the person’s agent under a DPOA must sign the deed to transfer the property), the original DPOA must be signed in front of two witnesses and a notary.  Some states, such as Ohio, only require the DPOA be notarized.  In Ohio, the DPOA does not need to be signed in front of two witnesses.  Therefore, if you have a DPOA from Ohio, chances are I’m going to tell you to update your DPOA to comply with Florida law if you plan on continuing to reside in Florida and you own real estate.  New York also only requires that the DPOA be signed in front of a notary.  Therefore, even if you have a DPOA that is valid in another state, if it was not signed in front of two witnesses and a notary, you would not be able to use it in Florida to sell Florida real estate and may be limited to only being able to use for banking purposes or non-real estate transactions.

Additionally, if you have a DPOA from another state that has a “check the box” type provision which offers a blanket grant of authority to do all acts the principal can do, this will not be acceptable in Florida to allow your agent to act on your behalf.  Florida also instituted “super powers” that must specifically be spelled out and acknowledged (via initialing or signing) if your agent is to be able to do these powers such as gifting, creating or amending trusts, and changing beneficiaries or owners on accounts.  The “check the box” forms of other states will not work for these super powers to be able to be used.  Thus, it is a good idea to have a Florida estate planning attorney look at your documents, especially your DPOA, to help you determine if it would be prudent to execute a new, Florida compliant durable power of attorney.

Durable Power of Attorney Florida

For over 20 years, Laurie Ohall has been serving the legal needs of Tampa Bay area families. Ms. Ohall is a Florida Board Certified Elder Law Attorney, and is also licensed in the state of Ohio.  It is her mission in the practice of law to protect, honor and educate her clients.  She advocates on behalf of her clients in the areas of Medicaid Reform and resident’s rights (in ALFs and nursing homes). She also provides clients with comprehensive estate planning including wills, trusts, and advanced healthcare directives, and gives Tampa area seniors and their children piece of mind as they navigate Florida Elder Laws. Her blog is updated regularly to educate Florida residents about the laws affecting seniors, estate planning and probate.

(813) 438-8503   1127 Nikki View Drive,  Brandon FL 33511

By |2014-04-23T13:34:09+00:00April 23rd, 2014|Categories: Estate Planning, Florida Laws, Power of Attorney|4 Comments