If you own property or accounts in Florida but live in another country, you may need someone in the United States to act for you. A foreign power of attorney may not always be accepted, especially if it does not follow Florida’s signing requirements.
A Florida durable power of attorney can give a trusted person authority to manage your finances and property if you cannot act. Without a valid document or another plan, such as a trust, your family may need to ask a Florida court to appoint a guardian.
What is a durable power of attorney?
A durable power of attorney is a written document that gives another person authority to act for you. That person is called your agent.
“Durable” means the document is intended to remain effective if you later become unable to manage your affairs. Florida requires language showing that the authority continues despite the principal’s later incapacity.
A new Florida power of attorney generally becomes effective when you sign it. Florida generally does not allow new documents that begin only after a future event, such as a determination that you have lost capacity, except for limited statutory situations. Your agent may therefore have authority immediately, which makes the choice of agent especially important.
This article addresses authority over money and property. Medical decisions usually require separate health care planning documents.
How do I sign a valid power of attorney in Florida?
A Florida power of attorney generally must be:
- signed by the principal;
- signed by two subscribing witnesses; and
- acknowledged by the principal before a notary public or another official authorized by Florida law.
The two witnesses also sign the document.
A durable power of attorney must also contain language showing that the document is not terminated simply because the principal later becomes incapacitated.
Will a foreign power of attorney work in Florida?
It may, but acceptance is not automatic.
Florida law expressly recognizes a power of attorney executed in another U.S. state when the document and its execution complied with that state’s law. The statute does not provide the same express recognition rule for a document executed in another country.
As a result, a power of attorney from your home country may face additional review. A common issue is that foreign documents are signed before a notary but not before two witnesses, which may not satisfy Florida’s execution requirements.
The receiving bank, title company, or other institution may also ask for:
- a certified English translation;
- an opinion from legal counsel;
- confirmation that the document remains valid;
- authentication of the foreign notarization; or
- additional information about the authority granted to the agent.
A document that works in your country may not give an agent the authority needed for a Florida transaction.
Can I sign a Florida power of attorney from abroad?
In many cases, yes. A power of attorney from abroad can be executed through several possible methods, but the document must still satisfy Florida’s signing and acknowledgment requirements.
Sign before a notary in your country
You may be able to sign before a notary public or civil-law notary in your country who has an official seal. You will also need the required witnesses.
Florida law recognizes acknowledgments taken outside the United States before certain foreign notaries, civil-law notaries, U.S. consular officers, and other authorized officials.
A bank, title company, or public records office may still request an apostille, authentication, certified translation, or legal opinion before relying on the document.
Sign at a U.S. embassy or consulate
A U.S. embassy or consulate can provide notarial services similar to those provided by a U.S. notary. Appointments are generally available regardless of nationality.
You must normally appear in person, should not sign the document before the appointment, and may need to bring your own witnesses. Consular notarization is not offered remotely.
Use a Florida online notary
A Florida online notary who is physically located in Florida may perform an online notarization even when the principal is in another country.
Witnesses can participate by video, but remote witnesses must confirm that they are U.S. residents and physically located in the United States or a U.S. territory at the time of witnessing. Additional safeguards and limitations apply to certain powers and to vulnerable adults.
Remote signing should be coordinated before the appointment. The identity-verification system, witness setup, document format, and authority being granted all need to work together.
Who can be my agent?
An individual agent must generally be at least 18 years old. Florida does not require the individual to be a U.S. citizen or Florida resident. A qualifying financial institution may also serve.
You can name a successor agent who will act if your first choice cannot or will not serve.
Your agent is a fiduciary. The agent must act within the authority granted, in good faith, and in a manner consistent with your interests and reasonable expectations. The agent must also maintain appropriate records
A nonresident friend or business associate may be able to serve, but may not qualify to receive compensation. Florida limits compensation to certain relatives, Florida residents, licensed professionals, and qualifying financial institutions. Agents may generally receive reimbursement for reasonable expenses.
Can my agent sell my Florida property?
Yes, if the power of attorney expressly grants the necessary authority.
General wording such as “my agent may do anything I could do” does not grant authority under Florida law. The document must identify the powers given to the agent with sufficient specificity.
Some powers require additional formalities. For example, authority to create or modify certain trusts, make gifts, change survivorship rights, change beneficiary designations, or disclaim property generally requires the principal to sign or initial next to each specific power.
For a Florida real estate transaction, the original power of attorney may be required so that it can be recorded in the county’s official records.
The document should describe the real estate authority the agent needs. A broad title alone does not ensure that the agent can sign a deed, mortgage property, manage a closing, or complete related documents.
Can a bank refuse my power of attorney?
In some circumstances, yes.
A third party must generally accept or reject a power of attorney within a reasonable time. For certain banking or investment transactions, four business days are presumed reasonable when the document contains the relevant statutory authority.
A financial institution generally cannot require you to replace the document with its own power-of-attorney form. If it rejects the document for a reason not specifically exempted by law, it generally must explain the reason in writing.
The institution may request:
- an affidavit confirming that the principal is alive and the authority remains valid;
- a certified English translation;
- a legal opinion explaining the document’s validity or scope; or
- the electronic journal or record for a remotely notarized document.
Florida law expressly allows these requests in appropriate circumstances.
A bank may reject the document when it has a good-faith reason to believe that the power is invalid, suspended, terminated, or does not authorize the requested transaction.
When does a power of attorney end?
A power of attorney ends when the principal dies. The agent cannot continue using it to manage the estate after death.
It may also end when:
- You revoke it: A principal who has capacity may revoke the power of attorney. Written notice should be provided to the agent and to banks or other institutions relying on it.
- The document reaches its stated ending point: It may terminate on a specified date, when its purpose has been completed, or upon another event described in the document.
- Your agent can no longer serve: If there is no available successor agent, the power of attorney may terminate.
- A divorce or separation case is filed: If your spouse is your agent, filing an action for divorce, annulment, or legal separation generally ends the spouse’s authority unless the document says otherwise.
- A court proceeding affects the authority: Filing an incapacity or guardianship proceeding can suspend the agent’s authority in some circumstances. A court adjudication of incapacity can also terminate the power unless the court preserves specific authority.
A durable power of attorney is designed to continue despite later incapacity, but “durable” does not make the document immune from court proceedings, revocation, suspension, or the other termination rules in Florida law.
What should I do if I own Florida property or accounts?
Review the document before it is needed. Confirm that it:
- follows Florida’s execution requirements;
- grants the authority your agent may actually need;
- names a reliable agent and successor;
- addresses banking and real estate transactions when relevant; and
- can be translated, authenticated, recorded, or presented to institutions if you live abroad.
Keep the original in a secure place and tell your agent where it is. If you already have a power of attorney from your home country, have its execution and authority reviewed before relying on it for a Florida transaction.
A trust can also allow someone you choose to manage property held in that trust. Read our comparison of revocable and irrevocable trusts for foreign owners of Florida property.
Key Takeaways
- A foreign power of attorney may not automatically be accepted in Florida.
- A Florida power of attorney generally requires the principal’s signature, two witnesses, and proper acknowledgment.
- You may be able to sign a Florida power of attorney from abroad through a foreign notary, a U.S. consular officer, or a Florida online notary.
- Your agent does not need to live in Florida, but the document must grant specific authority for the actions you expect the agent to take.
- A durable power of attorney ends at death and may also be affected by revocation, divorce, incapacity proceedings, or a court order.
Berke Celikel
Law Clerk at Loigica
Disclaimer
This article provides general information about foreign power of attorney. It does not constitute legal advice and does not create an attorney-client relationship. The validity, scope, authentication, recording, and acceptance of a power of attorney depend on the document, the place and method of execution, the authority granted, and the transaction involved. Requirements may change, and the document should be reviewed before it is signed or used.
Plan for Your Florida Property and Foreign Power of Attorney
If you live outside the United States and own property or financial accounts in Florida, LOIGICA can help you review the authority your agent may need and how the document should be executed.