Power of Attorney
A Power of Attorney (POA) is a document that authorizes another person—your “agent” or “attorney-in-fact”—to perform certain actions on your behalf. Florida does not recognize general statements as sufficient to grant power of attorney—you cannot simply write, “I give John full authority to act on my behalf in regard to any and all matters.” Instead, Florida law requires you specify what you authorize your agent to do for you, whether that be manage your finances, investments, real estate, taxes, or something else. Additionally, Florida requires special authorization for certain actions, like making gifts, disclaiming property, or setting up a trust, and the document must be appropriately witnessed and acknowledged before a notary. If the requirements are not followed, the document may be invalid, and this usually does not come to light until it is too late to fix it.
Depending on how the document is drafted, a Power of Attorney can be limited to specific actions, transactions, or timeframes, or it can grant broad authority to act on your behalf and remain in effect until you, the “principal,” become incapacitated (when you no longer have the ability to manage your affairs). However, while a regular Power of Attorney (sometimes referred to as a “limited” or “special” Power of Attorney) terminates when the principal becomes incapacitated, a Durable Power of Attorney (DPOA) will remain in effect. In order to be “durable,” a Power of Attorney needs particular language to indicate it remains in effect even after the principal loses capacity.
A Power of Attorney is one of the most powerful estate planning documents and can often help avoid a guardianship if drafted correctly. It is very important to carefully consider who you nominate as your agent and consult with an estate planning attorney to determine your wishes are followed and the document is drafted and executed correctly.
Different Types of Powers of Attorney
“Limited” or “Special” Power of Attorney
“Limited” or “Special” Power of Attorney is limited to specific actions or timeframes and will terminate when the action is fulfilled, the timeframe expires, or the principal becomes incapacitated.
General Power of Attorney
General Power of Attorney grants broad authority to the agent but is terminated if the principal becomes incapacitated.
Durable Power of Attorney
Durable Power of Attorney will remain in effect even if the principal becomes incapacitated. Florida requires specific language in a power of attorney for it to be “durable,” and if that language is not included, the default in Florida is that the document terminates when the principal becomes incapacitated.
Quick Facts About Powers of Attorney
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Any person 18 years or older who has the capacity to understand what they are signing, appreciate the powers being granted, and understand to whom they are granting those powers.
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Florida Powers of Attorney take effect immediately if executed on or after October 1, 2011. Florida no longer permits “springing” Powers of Attorney that take effect only upon the principal’s incapacity.
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Two groups can serve as an agent or attorney-in-fact in Florida:
1. Any “natural person” (a human) 18 years or older; and
2. A financial institution with trust powers that also has a place of business in Florida and has authority to conduct trust business in Florida.
So long as someone is competent to understand the power granted to them and the responsibilities that come with it, they can serve as an attorney-in-fact. Note that, unlike with personal representatives in probate administration, a felony conviction does not prevent someone from serving as another’s attorney-in-fact. This standard is much lower than for personal representatives. However, even though the standard is easier to meet, you should consider you are giving this person an immense amount of power and only choose someone you trust to always act in your best interest.
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Yes, if valid and properly executed according to the laws of that state. However, the use of an out-of-state power of attorney in Florida is still subject to Florida’s power of attorney laws.
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No matter how much power you give your agent, in Florida your agent can never legally do the following on your behalf:
Execute or revoke a will for you
Vote in a public election
Make an affidavit (sworn statement) as to your personal knowledge about something
Exercise powers and authority granted to you as trustee or as a court-appointed fiduciary
Perform duties under a contract that requires your personal service
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A principal can revoke a power of attorney by stating so in a writing signed by the principal. Alternatively, the principal can execute a new power of attorney in which the principal states they revoke prior powers of attorney.
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All Powers of Attorney terminate at the principal’s death or when the principal revokes the document. Limited or Special Powers of Attorney terminate once the timeframe has expired or other conditions outlined in the document have been met. All non-durable Powers of Attorney terminate once the principal is declared incapacitated, while Durable Powers of Attorney will remain in effect until terminated or revoked.
Additionally, with some exceptions, any Power of Attorney can be suspended (not terminated) if a court case is initiated to determine the capacity of the principal, as happens at the beginning of most guardianship proceedings.
Schedule a Free Consultation
If you would like help drafting a Power of Attorney that meets your needs, please schedule a free consultation.