Power of Attorney Legal Guide

What is a Power of Attorney?

Power of attorney (POA) is a legal document that allows someone to make decisions on your behalf if you are unable to do so yourself. The person you name to act for you is called your “agent” or “attorney-in-fact”.

You can give your agent broad or limited authority to handle things on your behalf like paying bills, managing property, making medical decisions, and more.

In Florida, power of attorney becomes effective immediately, not only if you become incapacitated.

Granting a durable power of attorney to someone you trust is an important estate planning tool so they can carry out your wishes if you become unable to act for yourself while you’re still alive.

Who Can be Given Power of Attorney?

In Florida, power of attorney can be given to anyone age 18 or older who is of sound mind.

You can also give power of attorney to a financial institution that has trust powers and a place of business in the state.

Unique Aspects of Florida’s Power of Attorney Law

Florida’s laws regarding power of attorney are established in Florida Statutes § 709. Florida has some unique aspects to its power of attorney laws compared to other states.

One major difference is that Florida does not allow springing powers of attorney — those that only take effect if you become incapacitated. All powers of attorney created in Florida take effect immediately when signed.

Another key aspect is that Florida law requires your agent to act in your best interests and avoid conflicts of interest.

Florida also has specific rules about witnesses, notices to third parties, and revocation procedures for powers of attorney.

How to Grant Power of Attorney

A power of attorney must be signed by the principal and two subscribing witnesses and be acknowledged by the principal before a notary public.

The agent should be notified in writing that they’ve been granted the power of attorney.

Do You Need a Lawyer to Get a Power of Attorney?

You don’t need a lawyer to write your power of attorney in Florida. Consulting an attorney is recommended for advice on the proper type of POA you need based on your situation – financial, healthcare, limited, etc.

A lawyer can ensure the correct POA form is prepared and that it is valid under Florida law. Improperly executed POAs can be void.

Lawyers can also help tailor the POA to give your agent the appropriate powers and protect you from abuse by including accountability provisions.

How to Get Power of Attorney for Someone Who is Incapacitated

To obtain power of attorney for someone who is not considered sound of mind legally, you’ll have to petition the court to determine incapacity and have yourself appointed as guardian.

The principal may not be considered sound of mind legally due to mental illness, intellectual disability, senility, substance abuse, or another cause.

To determine if someone is incapacitated, the person will be examined by a physician. The medical evidence will be used in a court hearing.

If the court appoints you as guardian, you’ll have the authority to manage their finances and medical decisions. As guardian, you can then execute a durable power of attorney naming yourself as an agent to handle the person’s affairs. The POA only becomes effective once the guardianship is established.

The incapacitated person will retain certain rights depending on their level of disability. The court will outline what powers you have as a legal guardian.

As a guardian, you will have to file ongoing accountings with the court about management of their affairs and you may need court approval for major transactions. You must act in the principal’s best interest.

Revoking Power of Attorney

A principal can terminate a POA at any time through a written statement saying it is revoked. They must be mentally sound when revoking.

The agent should be notified along with anyone else who relies on the agent having the power of attorney.

Can You Resign as Power of Attorney?

Yes, the agent can terminate a Power of Attorney by formally resigning their position in writing.

To relinquish a POA, the agent should provide written notice to the principal directly or via certified mail.

Types of POA

The principal can define their power of attorney to give an agent any specific authority that they decide. Two common types of POA are:

Limited Power of Attorney

Also called “Special Power of Attorney”, these only give authority for specific acts like selling property, managing investments, or making healthcare choices. Often a limited power of attorney is granted to a trusted business partner or real estate manager who regularly needs to handle transactions on behalf of the principal.

General Power of Attorney

This gives the agent full authority to act on the principal’s behalf regarding all personal and financial matters. General power of attorney is typically given when a catastrophic injury leaves a person physically incapacitated and unable to manage their affairs.

Durable Power of Attorney

By default, a power of attorney is terminated if the principal is incapacitated. A durable power of attorney contains special wording that allows the agent to continue acting on behalf of the principal if they are incapacitated except in certain exceptions.

A power of attorney is durable if it contains the words: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes.”

Dual Power of Attorney

A dual power of attorney grants equal power to two or more agents to decide on the matters specified in the POA. Under Florida law, if two or more agents are granted power of attorney, they must act unanimously. If three or more agents are named, they must act by majority vote.

Can You Sue Over Power of Attorney?

Yes, it is possible to sue over issues related to power of attorney. Some common reasons you may be able to sue include:

• Your agent abused their authority or acted in bad faith against your interests. This could include misusing your money or making decisions that go against your wishes.
• The power of attorney document itself is fraudulent or defective. For example, if someone forged your signature to obtain power of attorney illegally.
• Your agent failed to carry out their duties as required by law.
• A third party improperly refused to accept the valid power of attorney.

Any lawsuit would need to show how the agent or third party violated the law or terms of the power of attorney document, and how you were harmed as a result. A successful lawsuit against your agent may require the agent to return the money they spent or pay compensation for the damages they caused.

Consulting with an estate planning attorney can help determine if you have grounds to sue over a power of attorney.

Power of Attorney after Death

Power of attorney is only valid while the principal is alive. After death, the power of attorney is automatically invalidated and the responsibilities pass to the executor of estate specified in the will.

If no one was given power over the estate in the will, a probate court will decide who to appoint. Typically the court will assign the responsibility to the deceased’s spouse or children.

There are important decisions to make about the estate like distributing assets and handling debt. If the death was caused by another person or company’s negligence, the estate representative may be able to bring a wrongful death lawsuit on behalf of the deceased person’s estate.

Sources

Florida Bar. Consumer Pamphlet: Florida Power of Attorney. Accessed October 24, 2023. https://www.floridabar.org/public/consumer/pamphlet13/

Florida Bar. Power of Attorney Overview. https://www.floridabar.org/practice-areas/power-of-attorney/

Florida Statutes Chapter 709. Accessed October 24, 2023. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0709/0709.html