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Florida Power of Attorney Requirements and Guidelines

Florida Power of Attorney

A Florida power of attorney (“POA”) allows you to designate an “agent” to act on your behalf. The power of attorney is primarily  used for financial transactions. However, in Florida you can also allow the agent to make health care decisions for you, the Designation of Health Care Surrogate is a document better suited to that end. 

Types of Powers of Attorneys in Florida

Depending on your specific needs, the type of Florida power of attorney you create will vary. The authority you give to your agent may be general in nature or very specific. In Florida you can create the following powers of attorneys:

  1. General Power of Attorney: the general power of attorney allows you to give your agent broad authority. Your agent will be able to do financial transactions like banking, buying or selling real estate, deal with the government, among others.
  2. Limited or Special Power of Attorney: the limited power of attorney is used when you need to give your agent authority only for a specified purpose and for a limited duration. For example, if you travel out of the country you can designate an agent to complete a closing on a property. Once the purpose or duration ends, the authority terminates. 
  3. Durable Power of Attorney: the durable power of attorneys allows the authority you give to your agent to stay effective even after your incapacity. The durable power of attorney can be made general or specific. in order to create a durable power of attorney the document must state that “this durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in Chapter 709, Florida Statutes.
  4. Springing Power of Attorney: Florida removed the ability to create “springing powers” as of 2011. The springing power of attorney kicked in the authority when you become incapacitated. Present law is that the power of attorney is effective immediately. 

Capacity to create a Florida power of attorney

In order to create a power of attorney in Florida you must have capacity. In a general sense, capacity means that you understanding what you are executing and the effect of the power of attorney. 

As long as you understand the effects of the power of attorney, you will have capacity to execute it. When I talk about capacity, I mean mental capacity.

A lot of the time, potential clients come to me when their family friend has dementia or some other mind debilitating disorder. At that point, executing a power of attorney can be risky, but technically the person can execute the power of attorney if the person has lucid moments and they understand what they are signing at that moment.

Execution requirements of a Florida power of attorney

In order for the power of attorney to be valid, you must sign the power of attorney in front of two (2) witnesses and must be acknowledge by a notary.

You must all sign in the presence of each other when executing the power of attorney. This is one requirement that often gets overlooked. 

Qualification of Agent for the Florida power of attorney

Section 709.2105 of the Florida Statutes states that the  agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.

When designating your agent, make sure you designate someone that you trust. The agent will have full and exclusive authority to carry out the purpose of the power of attorney. Although an agent may be liable for breach of fiduciary duty for acting outside of the scope of the power of attorney, you don’t want to place yourself in that situation.

Agent's duties under the Florida power of attorney

The relationship between you and your agent is a fiduciary relationship. Your agent must act within the scope of the authority granted under the power of attorney.

The agent must act in good faith, and must not act contrary to your best interest and your reasonable expectations if they have been communicated. F.S. 709.2114

If your agent acts against the scope of the power of attorney or against your best interests, then the agent may be liable to you or your successors for the amount required to restore the value of the property to what it had been had the breach not occurred, and reimburse you or your successions for attorney’s fees for funds spent to go after the agent for his or her violations. 

Authority of the agent under the Florida power of attorney

Section 709.2201 of the Florida Statutes states that an agent only has the authority specifically granted under the power of attorney. However, under the power of attorney the agent does not have the authority to vote in public elections, execute or revoke a will, exercise personal services under a contract for your behalf, make an affidavit as to your personal knowledge, or exercise powers as trustee or a court appointed fiduciary on your behalf.

In addition to the authority mentioned above, under F.S. 709.2202 you must also separately initial a list of powers in order to give your agent the authority:

(a) Create an inter vivos trust;
(b) With respect to a trust created by or on behalf of the principal, amend, modify, revoke, or terminate the trust, but only if the trust instrument explicitly provides for amendment, modification, revocation, or termination by the settlor’s agent;
(c) Make a gift;
(d) Create or change rights of survivorship;
(e) Create or change a beneficiary designation;
(f) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or
(g) Disclaim property and powers of appointment.
 

Many people think that as agents they are able to transfer property to their names in order to avoid probate. However, unless you give initial the power to make gifts, the agents will not be able to freely dispose of any property. Even if you give your agent powers to make gifts, you can also limit the gifts and to whom the agent is authorized to make gifts. 

Termination and revocation of the Florida Power of Attorney

A Florida power of attorney terminates when:

(a) The principal dies;
(b) The principal becomes incapacitated, if the power of attorney is not durable;
(c) The principal is adjudicated totally or partially incapacitated by a court, unless the court determines that certain authority granted by the power of attorney is to be exercisable by the agent;
(d) The principal revokes the power of attorney;
(e) The power of attorney provides that it terminates;
(f) The purpose of the power of attorney is accomplished; or
(g) The agent’s authority terminates and the power of attorney does not provide for another agent to act under the power of attorney. F.S. 709.2109
 

You may revoke the power of attorney by executing another writing revoking the power of attorney or by creating a new power of attorney and expressing that the new power of attorney will revoke any previous authority given.

Beware that creating a new power of attorney without expressly revoking the prior power of attorney will not revoke the previous power of attorney. You may have more than one agent acting on your behalf. 

 

Contact my office if you want to create a Florida power of attorney

I hope you found this information valuable. If you have any questions regarding Florida power of attorneys make sure to complete the form in this page and I will personally answer them.

I specialize in drafting powers of attorneys. If you are interested in preparing a power of attorney call my office at (305) 489-1415 or reach out to me directly through the contact me form.

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