How to Execute a Power of Attorney—Without a Signature

The Florida legislature recently saw fit to amend the Florida Power of Attorney Act (the “Act”). The revised Act, reflected in Ch. 709 of the Florida Statutes, became effective on October 1, 2011, as lawmakers re-wrote the entire chapter in order to conform more closely to the Uniform Power of Attorney Act. While only 13 states and the Virgin Islands have enacted the Uniform Power of Attorney Act, two more states (Mississippi and Pennsylvania) introduced it this year alone. These changes to Florida law, some of which are described below, reflect a nationwide trend that is expected to pick up steam in the coming years.

One of the most important and noteworthy provisions of the Act lies in Florida Statute Ch. 709.2105, addressing how a disabled principal may validly execute a power of attorney. With regard to notary publics generally, Florida Statute Ch. 117(14) requires a notary public to make “reasonable accommodations” in order to provide notarial services to persons with disabilities. This provision goes so far as to allow a notary public to validly notarize the document of a person who signs with a mark, rather than a signature, so long as the following conditions are met: (1) the signing of the document is witnessed by two disinterested persons; (2) the notary prints the person’s first and last name on the designated signature line; and (3) the notary prints the words “his (or her) mark” below that person’s signature mark.

While this provision on its own may not seem to be very ground-breaking; however, the Act now allows a person who is physically unable to make a signature the opportunity to execute a power of attorney according to the above-outlined procedure. Florida Statute Ch. 709.2105 now explicitly allows this method of execution for a person who is physically unable to sign a power of attorney.

Even if separate signatures or initials are required for enumerated authorities, such as when the principal wishes to authorize the disposition of assets by trust, gift, or beneficiary designation, according to Florida Statute Ch. 709.2202(2), the notary public may sign the principal’s name or initials, so long as the following conditions are met: (1) the principal directs the notary to sign the principal’s name or initials; (2) the signing or initialing by the notary is done in the presence of the principal and two disinterested, subscribing witnesses; and (3) the notary acknowledges that this is being done pursuant to Florida Statute Ch. 709.2202(2).

The fact that a person may now execute a valid power of attorney without actually signing it himself (or herself) is a substantial change to Florida law, and its implications and limitations could certainly have a very profound effect on how estate planning documents are given effect. It is important that anyone who may be in a similar situation seek professional legal advice to understand the implications of these new changes to Florida law. The attorneys at Chepenik Trushin LLP have the knowledge and experience to advise and guide you in the creation or modification of your estate plan, taking into account all recent changes in state and federal law that could potentially impact that plan.