Power of Attorney FAQ

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 can execute a power of attorney in Florida.

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. Despite this, there are still ways to prevent an agent from acting unless or until the principal becomes incapacitated, but you should speak with a Florida estate planning attorney to see if these are right for you.

The principal is the person who is executing the document and giving someone else (the agent) the power to act on their behalf.

An agent is the person who is nominated to act for the principal under the power of attorney.

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 agent or attorney-in-fact. Note that unlike with personal representatives in probate administration, a felony conviction does not prevent someone from serving as another’s agent or 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.

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, so it is always a good idea to have a Florida estate planning attorney review your documents to help you avoid problems.

No matter how much power you give your agent, in Florida your agent can never legally do the following on your behalf:

1. Execute or revoke a will for you

2. Vote in a public election

3. Make an affidavit (sworn statement) as to your personal knowledge about something

4. Exercise powers and authority granted to you as trustee or as a court-appointed fiduciary

5. Perform duties under a contract that requires your personal service

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.

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.