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Can I use a POA to sign a note, mortgage, or deed?

On October 6, 2018 by

Yes, you can use a power of attorney to sign a promissory note, mortgage, or deed. A power of attorney is a legal document authorizing someone else to act on your behalf. You are called the principal, and the person authorized to sign on your behalf is called the agent.

In Florida, the principal’s signature on a power of attorney must be notarized. If the signature is not notarized, then the power of attorney will not be valid. When a power of attorney is used for transactions involving land, Florida law requires the principal sign the power of attorney with the same formalities that would be used to sign a deed.  This means the principal’s signature on the power of attorney must be notarized and witnessed by at least two people. Florida does not require the witnesses’ signatures to be notarized. An agent with this power of attorney will have the power to sell real property, commit the principal to a mortgage, and obligate the principal to a promissory note.

There are some special rules if the home being sold is the principal’s primary residence, also known as homestead. If the principal is married, then the principal’s spouse will also have to join in the sale of the homestead. If the principal is not married, then the agent will have the power to sell the principal’s homestead.

Just because your power of attorney complies with Florida law does not mean it will be accepted by your lender, title company, or closing agent. They are not required to accept your power of attorney, and they may have their own requirements for how powers of attorney must be prepared. This may include giving the full legal description of the property being sold or mortgaged, including an explanation why the principal is not able to attend the closing, or specifying a maximum allowable loan amount. Sometimes the lender, title company, or closing agent will have additional legal requirements. For example, they may require that you have a durable power of attorney. A normal power of attorney becomes invalid when the principal becomes incapacitated. However, Florida law allows for a special kind of power of attorney, known as a durable power of attorney, to remain valid when the principal is incapacitated. These durable powers of attorney must contain specific language to be considered valid. This includes the statement:  “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes.”

You can use a power of attorney to sign a note, mortgage, or deed. However, the power of attorney must meet certain legal requirements. Even if your power of attorney meets these requirements, your lender, title company, or closing agent may have their own requirements. You should contact them in advance to find out their requirements. Notably, your lender, title company, or closing agent may not be authorized to prepare the power of attorney for you. A power of attorney is a complex legal document, and in most instances only a licensed attorney is authorized to prepare legal documents. Consulting with a qualified real estate attorney in advance is the best way to ensure your transaction runs smoothly.

 

Eric Klein

Eric is the Principal Attorney and President of Klein Law Group. He has spent over 20 years practicing law and guiding clients through some of the most challenging times of their lives.