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Q&A: The impact of Florida's new power of attorney law

In an effort to protect elderly persons from being exploited, the state of Florida enacted a new law this month that changes the way powers of attorney are executed and notarized. The NNA’s Healthcare Professionals Section spoke with elder law attorney Howard Krooks to discuss the changes in the new law and how it may affect powers of attorney notarized in other states.

What changes does the Florida law make to the notarization requirements for powers of attorney?

Previously, only durable powers of attorney — a power of attorney that remains effective if the principal giving the power is incapacitated later — had to be witnessed by two individuals and notarized. Under the new Power of Attorney Act, this requirement now extends to both durable and non-durable powers of attorney.

Can the Notary serve as a witness?

The Notary can serve as one of the witnesses. It’s important to note that Floridians are being warned that if the procedures established by the new law are not followed, the powers of attorney that don’t comply will be invalid.

How does this law affect powers of attorney created and notarized in other states?

Florida’s new power of attorney act is based upon the Uniform Power of Attorney Act, which has been adopted in some form in a handful of jurisdictions. The purpose of the uniform law is to render powers of attorney portable between states. However, Florida made some revisions to the Act, and because of this there are still a few questions about document portability between other states and Florida.

What would happen if someone has created and notarized a power of attorney in another state, but then moves to Florida? Would the power of attorney still remain valid?

An existing power of attorney that pre-dates October 1, 2011 from another state will still be valid in Florida as long as it was validly executed according to the laws of the other state.

What should a Florida Notary do if asked by someone to “re-notarize” an older power of attorney document?

I do not recommend that a Notary re-notarize a power of attorney that was in existence prior to October 1, 2011, because there are new rules that require either a principal’s initials or a signature next to the powers granted on the document. If this requirement isn’t already present, and the document is signed again on or after October 1, 2011, the powers on the document will not be validly conferred.

23 Comments

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Paul

01 Dec 2014

Does the Notary expiration date make a document (power of attorney) void if the notarization was done before the expiration date. Example: Power of attorney signed and notarized Febuary 2010, Notary expires November 2010. Does the power of attorney expire on the notary's stamp expiration date. This came up today when presenting this for vehicle title transfer in Florida.

National Notary Association

01 Dec 2014

Hi Paul, That is a legal question and would need to be answered by a Florida attorney.

Frank Contr

05 Nov 2015

Florida durables do nondurable power of attorney documents that are signed and notarized in Nj with residents as witness

ajone1s@icloud.com

04 Aug 2017

Did I read correctly that the principal's initials or signature must appear next to any power granted?

National Notary Association

08 Aug 2017

Hello. For more information on the 2011 Florida power of attorney act, please see here: http://leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0709/0709.html

Christina Beaulieu

26 Nov 2017

Does POA have to be a relative or can it be a friend out of state?

National Notary Association

27 Nov 2017

Hello. We're sorry, but that's a legal question that would need to be answered by a qualified attorney.

Walter Smallman

11 Mar 2018

In 1991 dad went to Fla. every winter for work from Ohio. He made a POA in Fla by a Notary Public.So I can handle everything here in OHIO as though I was him. NOW he is 85, Health not good, don't remember a lot. He has a TRUST now instead of will. Can this POA override the TRUST if need be.

National Notary Association

12 Mar 2018

Hello. We're sorry, but that is a legal question that would need to be answered by a qualified attorney.

Ana Araya

02 Aug 2018

Is a POA in FL valid with a fingerprint instead of a signature?

National Notary Association

02 Aug 2018

Hello. We're sorry, but any questions about the legality of a power of attorney document would need to be answered by a qualified attorney.

Gale Alexander

08 Jan 2021

Does a Florida medical power of attorney need to be notarized?

National Notary Association

08 Jan 2021

Hello. We're sorry, but that's a legal question we aren't authorized to answer. You would need to contact a qualified attorney for assistance.

Angela Speckner

17 May 2021

Can the Notary, notarize and witness a POA in the State of Florida?

National Notary Association

26 May 2021

Hello. If a signer is unsure whether a Notary may notarize and act separately as a witness for a particular document, the signer should contact a qualified attorney to request instructions. The governor's Reference Manual for Notaries states the following about acting as both a Notary and witness: “Generally, a notary public may sign as one of the witnesses and as the notary public on a document. In fact, it is a common practice among Florida notaries, particularly on real estate transactions ... In addition, a Florida court has held that ‘there is nothing to prevent a notary from also being a witness.’ See Walker v. City of Jacksonville, 360 So.2d 52 (1978). However, before signing as a witness, the notary should ensure that the document does not require the notarization of the witnesses’ signatures” (RMN).

Hegel Idarraga

21 May 2021

Can I be the witness and Notary in a POA if needed? Are 2 witnesses required in Florida for a POA or 1 will be enough?

National Notary Association

26 May 2021

Hello. Any questions about witness requirements for a specific legal document would need to be answered by a qualified attorney. The governor's Reference Manual for Notaries provides the following general information about Notaries serving separately as document witnesses: “Generally, a notary public may sign as one of the witnesses and as the notary public on a document. In fact, it is a common practice among Florida notaries, particularly on real estate transactions ... In addition, a Florida court has held that ‘there is nothing to prevent a notary from also being a witness.’ See Walker v. City of Jacksonville, 360 So.2d 52 (1978). However, before signing as a witness, the notary should ensure that the document does not require the notarization of the witnesses’ signatures” (RMN).

Marianne

28 Mar 2023

If a POA had a stamp notary but not a seal is the document legal?

National Notary Association

03 Apr 2023

Hello. We're sorry, but that is a legal question we aren't authorized to answer. You would need to contact a qualified attorney to answer any questions about the legality of a document.

Sonia Francis-Rolle

02 Jan 2024

Can a notary of public prepare a power of attorney and notarize the same document? Also, does the principal of a power of attorney have to be on the same page of the notary seal?

National Notary Association

05 Jan 2024

Hello. To help us answer your question, can you please tell us what state you are commissioned in, and if you are an attorney qualified to practice law in your state?

Kurt Jerger

01 Apr 2024

In Florida can an attorney prepare a power of attorney and then notarize it?

National Notary Association

01 Apr 2024

Hello. In Florida, “... a notary public who is an attorney does not have a financial interest in and is not a party to the underlying transaction evidenced by a notarized document if he or she notarizes a signature on that document for a client for whom he or she serves as an attorney of record and he or she has no interest in the document other than the fee paid to him or her for legal services and the fee authorized by law for services as a notary public” (FS 117.107[12]). “[I]t is unlawful for a notary public to notarize his own signature” (FS 117.05[1]).

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