Properly Utilizing a Limited Power of Attorney

A Power of Attorney is a useful tool that allows a person to legally take some action on behalf of another in a specific situation. There are several types of Powers of Attorney (General, Limited, Durable, etc.) but the focus of this blog will be on LPOAs (LPOA) as they are more commonly utilized in a real estate transaction given the specific real property powers granted therein.

There are a number of circumstances in which a person may want to use a LPOA in conjunction with a real estate transaction; most often the need arises at closing. For example, a person may be traveling and unable to attend closing, or may not be in a location where they have access to a notary public to ensure their closing documents are properly executed. In these situations they may decide that they want to use a LPOA to ensure closing can proceed as scheduled and that all documents are executed properly. There is a common misconception that a LPOA is so simple that you can just download one off of the internet, sign it, and the problem is solved. However, this is not the case. An improperly prepared and/or executed LPOA could not only delay closing but may ultimately leave a party in default under their contract. Furthermore, a defective LPOA could result in a title defect requiring time, resources, and money to resolve.

If you wish to use a LPOA, the first step is always to consult your closing agent and your lender for approval. Once you have authorization, you will need to have a LPOA prepared by an attorney and properly executed. In Florida, to be valid, a LPOA must be signed in front of two witnesses and a notary. Additionally, in a transaction involving a lender, the LPOA must specifically grant the authority to mortgage real property. A lender will also require that the LPOA specifically mention the name of the lender, and specifically give the holder of the power the authority to sign all of the documents that the lender may require at closing.

Further, the LPOA must be property specific and include the legal description of the subject property, the names of the Buyers and Sellers, the subject property address, and a list of other documents that may be signed by the holder with that specific power. Additionally, an expiration date for the LPOA may be included.

Before the LPOA is executed, it is best to have both your closing agent and lender review the document to ensure it complies with any policies that they may have. Keep in mind that a LPOA that was executed outside the State of Florida may not be valid for use in Florida without further documentation (e.g., opinion of counsel as to the execution and validity of the power of attorney).

Therefore, if you anticipate that a party to your transaction may need to use a LPOA, Contact your attorney as soon as possible so they can work with you to ensure that you are able to use the LPOA, and have the correct document prior to closing. As always, if you have any questions about using a Limited Power of Attorney or what you can do to ensure you are prepared for closing, we urge you to consult with your local real estate attorney.

Sincerely,

Berlin Patten Ebling, PLLC

Article Authored by Natasha Selvaraj nselvaraj@berlinpatten.com

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

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