A power of attorney (“POA”) is a legal document delegating authority (specific rights set forth in the POA) from one person (the principal) to another (the agent). Association boards and managers may have encountered these from members who wish to designate someone else to act on their behalf and many questions arise as a result. Are there any limits? Does this document give someone outside the membership the authority to attend meetings or to vote in elections? In almost all circumstances an association should reach out to its general counsel as there are legal requirements which must be met before accepting a POA.
If a member presents a POA, the first thing is to confirm it is valid insofar as it complies with Section 709.2105, Florida Statute which, as of 2011, requires it be witnessed and notarized. Equally important is confirmation that the provisions of a POA identify what particular authority is being granted. In short, the POA needs to specifically state the types of activities the agent is authorized to perform on behalf of the agent (which for purposes of community associations is usually the unit/parcel owner). Often you will hear the terms “limited power of attorney” versus “general power of attorney”. However, this distinction in terminology is no longer recognized in Florida law. Regardless of the title or how broad the powers are, the specific list of the types of activities the agent is authorized to perform must be included in the POA document. What this means is that if an agent wants to attend an association meeting on behalf of a member, then attendance at meetings must be listed in the POA document.
What about voting in elections? Can the holder of the POA vote on behalf of a unit owner? As is often the case with questions posed to attorneys, the answer is “it depends.” In the condominium context, arbitration decisions which have addressed the issue consistently affirm an agent as being able to take any action on behalf of unit owners. For example, a unit owner was permitted to cast a recall vote through a power of attorney because the association was on notice where a copy of a valid power of attorney specifying the authority to vote accompanied the recall ballot. With that said, a POA which purports to give someone the right to vote on behalf of a member must comply with the specific requirements for general and limited proxies. That means that the agent cannot vote in a condominium election which prohibits the use of proxies for electing directors. In such an instance, regardless of the language of the POA, only the actual owner/member will be permitted to cast the ballot in a condominium election.
In sum, if the POA was lawfully signed, is appropriately specific, and it has not been revoked, suspended, or terminated, the association may be forced to honor the document as if the agent were an owner. To confirm this criteria has been satisfied, the association should contact its attorney.
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