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In Florida, a Lady Bird deed can indeed be executed using a power of attorney, provided they both comply with Florida's statutory requirements regarding capacity, content, and execution.
Capacity refers to the mental state of the person executing the document, with the individual must possess the necessary understanding to execute the power of attorney and the deed, and If a non-durable power of attorney is used, the principal's current capacity is critical, in addition, the agent who executes the deed on the principal's behalf also requires capacity, and despite the testamentary nature of a Lady Bird deed, the required capacity for its execution aligns with that of deeds, not wills, which is lower.
Content means that a power of attorney should explicitly authorize the agent to transfer the principal's real estate, and If it doesn't, it can't be used to execute a Lady Bird deed, and the deed itself should contain specific language referring to the use of power of attorney, should be executed in a particular manner, and should be recorded along with proof of the agent's authority.
Execution implies that the power of attorney must meet the legal requirements of the state of Florida, where the POA was executed, with Florida may have more stringent requirements, including the need for disinterested witnesses or notarizing the principal's signature. If a power of attorney executed elsewhere does not meet Florida's requirements, additional steps might be needed to validate it.
Lady Bird deeds, like any other deeds in Florida, must adhere to the state's statutory execution requirements, and additional measures are necessary when an agent executes the deed using a power of attorney on behalf of the grantor.
Agents must be aware of their fiduciary duties to the principal, and they are responsible for carrying out the principal's wishes, and each action they take must meet this standard. For example, if the principal's will outlines a specific property distribution among multiple children, but the agent executes a Lady Bird deed favoring only one child without clear instructions from the principal, it could be considered a breach of fiduciary duty.
It's essential to consider whether a Lady Bird deed fits into the principal's overall estate plan, because other estate planning tools may be a better fit depending on the circumstances, and while Lady Bird deeds offer significant advantages, they do not provide for contingencies, such as the beneficiary predeceasing or passing simultaneously with the principal.
Always consult with a Florida attorney to ensure that the Lady Bird deed and power of attorney are properly prepared and meet all legal requirements before attempting to execute such a deed.
Published: Nov 8, 2022
Updated: Dec 9, 2023
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