In a power of attorney (POA), the person creating the document (the principal) designates someone else (the agent or attorney-in-fact) to act on his or her behalf in the event of incapacitation or unavailability.
The level of authority granted to the agent (or attorney-in-fact) varies according to the provisions in the POA. In most cases, a POA allows the agent to act on the principal’s behalf exclusively on financial matters.
In this article, you will discover whether a family member can be a witness on a Florida POA.
Florida Power of Attorney – An Introduction
Nationwide, different states have distinct rules regarding the creation and execution of powers of attorney. Essentially, the validity of a POA document depends on whether it was properly executed under the statutory rules of a specific state.
If the document is not executed adequately, the agent may have trouble with third parties that will likely refuse to recognize his or her authority under the POA. In Florida, one of the validity requirements for a POA includes the document’s signature in front of qualified witnesses.
Can a Family Member be a Witness on a Power of Attorney in Florida? – The Verdict
Florida Statutes §709.2105 details the eligibility requirements for POA agents within state jurisdiction and the execution requirements involved in the creation of the document.
The statute provides that “the agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.”
As expected, the document “must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public or as otherwise provided in section 695.03.”
Florida Statutes §709.2105 (3) specifies that “if the principal is physically unable to sign the power of attorney, the notary public before whom the principal’s oath or acknowledgment is made may sign the principal’s name on the power of attorney pursuant to s. 117.05(14).”
There is no statutory rule that precludes a family member from serving as a witness on a POA. Therefore, under Florida law, a family member is permitted to witness the signature and execution of a POA.
Still, selecting a family member as one of the required witnesses on a POA is not considered a good practice. The best approach would be choosing only “disinterested” individuals, which automatically precludes:
- The agent (or attorney-in-fact) appointed by the document
- A blood relative
- A family member related by marriage
- Any person who may have an interest in the principal’s estate upon his or her death
When notarizing a Florida POA, the notary can act only as a notary and not simultaneously serve as a witness. Also, a notary may not notarize the signature acknowledgment of a legal document for his or her family members.
For example, within state jurisdiction, a parent cannot serve as a notary for a son or daughter, or a child cannot notarize a parent’s signature in a legal document.