Whether your power of attorney (“POA”) can be used to sell your real estate depends on many factors and is fact specific. At the very least, your POA will need to authorize your attorney-in-fact (your “Agent”) to convey real estate on your behalf. Your capacity, when the POA was signed, the legibility of your signature, the witnesses, and the relationship between you and your Agent will all be factors in determining whether your POA is sufficient to authorize your Agent to sell your real property. I will speak about these further below.
Capacity – Whether your POA can act on your behalf will depend on your capacity and the type of POA you have. A POA usually terminates if you become incapacitated unless your POA is “durable.” A durable POA allows the authority you give to your Agent to stay effective even if you become incapacitated. For your POA to be durable, the following specific language must be included in your POA: this durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in Chapter 709, Florida Statutes.
Date signed – When the POA was signed can impact the decision about whether your POA is sufficient. For instance, if your POA was signed by you a month prior to the sale and your Agent is quickly trying to sell your property, then that raises a red flag. A closing agent may want to speak with you prior to closing the transaction. If you are incapacitated or otherwise unavailable to speak, then the closing agent may not want to move forward with the transaction.
Legibility of your signature – If your signature is illegible or it is legible, but it is obvious you had serious difficulty signing, then that is a red flag to the closing agent. Your capacity at the time of signing will come into question. The closing agent may want to speak with you or obtain some proof that you had the required capacity to sign the POA when you signed.
Witnesses – The witnesses that signed need to be 18 years of age or older. The witnesses should not have an interest in the property and they should not be family. There is no outright prohibition against family acting as a witness to your POA, but it is not good practice and should be avoided if possible. The Agent cannot be a witness.
Agent – The closing agent will want to know what the relationship is between your Agent and yourself. It is usually expected for your Agent to be a close family member or friend. If the Agent has no relation to you and has not known you for long, then that is a red flag and the closing agent will likely want to speak with you to confirm you want the Agent to sign on your behalf.
As you can see, there is no clear-cut answer as to whether your POA will be sufficient to allow your Agent to sell your real property. It all depends on the facts and circumstances around the POA. But if you have an idea for what closing agents look for, you can better prepare to make sure there is no question as to the validity of your POA.
If you want to use your POA to sell your real estate, you can provide your POA to a title company or real estate attorney to review. They can confirm whether your POA is sufficient.