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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.
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:
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.
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.
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.
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.
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:
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.
A Florida power of attorney terminates when:
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.
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.