What Makes A Durable Power Of Attorney Legal?
A durable power of attorney becomes legal as soon as it is executed by a principal who has capacity. The wording of the durable power of attorney restricts or creates the ability for the agent named to act on the principal’s behalf. The legal validity of the durable power of attorney is usually construed by a third party, such as a financial institution, bank, investment company, or court. The third-party will be looking for verification of the identity of the person who signed the document and for verification of the identity of the person named as the agent. This can become problematic if the agent has changed names due to marriage, divorce, or legal name change.
Once the parties are identified, the financial institutions and legal departments are going to ensure that the document was validly executed on its face, which means that the principal, two witnesses, and a notary signed it. Typically, financial institutions should not inquire as to whether or not the person who signed the document had capacity at the time of signing because this is not mandated by law and creates additional red tape for the process of using the power of attorney.
Finally, the person reviewing the power of attorney will make sure it is legal and review the proposed action with the language specifically stated in the power of attorney document to see if the proposed action fits the language in the document. For example, if the agent under a power of attorney wants to open up a bank account, the durable power of attorney document needs to state that the agent indeed has the power to do so. If that language is missing, then the bank can deny the proposed action and the ability of the agent to take that action.
How Do You Sign A Power Of Attorney Form?
The durable power of attorney form can be executed in Florida when the principal signs their name to it with capacity and in the presence of two witnesses who also sign their name and a notary who notarizes the signatures; for people who are happy, healthy, and alert, this is a very easy transaction. The durable power of attorney form and instrument becomes much more difficult when there are varying degrees of mental and physical incapacity or diminished physical and mental incapacity. A durable power of attorney form may also be difficult to execute when there is no valid identification for the notary to confirm the identity of the person executing the document.
While a principal must be able to execute the document, doing so can be as simple as making a mark. Florida laws dictate that the mark does not have to be clearly cursive or a written version of the principal’s name; it could simply be a line much like the bad signatures seen on doctor’s forms. If the principal is unable to write their name, then writing an “x” would be sufficient as long as it indicates that they made the execution with the intent to authenticate the document and the ability to understand the legal nature of it.
Lastly, physical incapacity or blindness of the person signing the durable power of attorney can be overcome by the wording of the notary block. If someone is physically unable to sign the document due to a medical ailment that prevents the use of a pen, then the notary can sign on that person’s behalf. If the person signing the durable power of attorney is blind, the notary’s statute requires a notary to read the document to the blind person. So, if someone is limited in their physical ability to sign the document, then accommodations can be made after an attorney consultation.
For more information on Legality Of A Durable Power Of Attorney, an initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (904) 398-6100 today.
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