Under Florida law (FS §709.2105), a power of attorney must (1) signed by the principal; (2) signed by two subscribing witnesses; and (3) acknowledged by the principal (a) before a notary public or (b) as otherwise provided in s. 695.03. Florida recognizes powers of attorney executed in other states that do not strictly comply with Florida law, provided the power of attorney and its execution complied with the law of the state of execution. However, this exception only applies to a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. This exception does not apply to powers of attorney executed in other countries.
Recently, the Florida Third District Court of Appeal addressed this issue, holding that a power of attorney executed in Argentina that failed to contain two subscribing witnesses but otherwise executed in compliance with Florida law was invalid as a matter of law as to actions taken by an agent pursuant to a power of attorney. In Parisi v Maria Isabel Quadri Kingston, shortly before his death, a decedent executed a power of attorney in Argentina which complied with Argentina law. The power of attorney was signed and notarized but was not witnessed by two witnesses. The agent conveyed real property located in Florida three days before the decedent died intestate.
The Estate filed a lawsuit to quiet title, to declare that the power of attorney was invalid, and to invalidate as void the deed of the real property. The trial grout granted the Estate’s Motion for Partial Summary Judgment declaring the deed invalid and quieting title.
On appeal, the Third District Court of Appeal held that while the notarization of the power of attorney may allay concerns as to whether the power of attorney was signed by the principal (Decedent), the requirement under Florida law for the subscribing witnesses provides additional assurances, such as the circumstances under which the principal signed the power of attorney. The Court held that the trial court correctly determined that the execution requirements set forth in section 709.2105 must be strictly construed. Accordingly, it determined that any action taken by the agent pursuant to the invalid power of attorney is void and declared the Estate the sole rightful holder of title to the property.
This case presents a warning that careful attention must be given to documents governed by Florida statutes. Rosenthal Law Group has experience evaluating and invalidating invalid real estate transactions.