POWER OF ATTORNEY IN FLORIDA

What is a Power of Attorney?

A Power of Attorney is a legal document delegating authority from one person to another. In the document, the maker of the Power of Attorney (the “principal”) grants the right to act on the maker’s behalf as their agent. What authority is granted depends on the specific language of the Power of Attorney. A person giving a Power of Attorney may make it very broad or may limit it to certain specific acts.

What are some uses of a Power of Attorney?

A Power of Attorney may be used to give another the right to sell a car, home or other property. A Power of Attorney might be used to allow another to access bank accounts, sign a contract, make health care decisions, handle financial transactions or sign legal documents for the principal. A Power of Attorney may give others the right to do almost any legal act that the maker of the Power of Attorney could do, including the ability to create trusts and make gifts.

Where may a person obtain a Power of Attorney?

A Power of Attorney is an important and powerful legal document, as it is authority for someone to act in someone else’s legal capacity. It should be drawn by a lawyer to meet the person’s specific circumstances. Pre-printed forms may fail to provide the protection desired.

Does a Power of Attorney need witnesses or a notary?

A Power of Attorney must be signed by the principal and by two witnesses to the principal’s signature, and a notary must acknowledge the principal’s signature for the Power of Attorney to be properly executed and valid under Florida law. There are exceptions for military Powers of Attorney and for Powers of Attorney created under the laws of another state.

What is a “principal”?

The “principal” is the maker of the Power of Attorney - the person who is delegating authority to another. This is the person who is allowing someone else to act on his or her behalf.

What is an “agent”?

The “agent” is the recipient of the Power of Attorney - the party who is given the power to act on behalf of the principal. The agent is sometimes referred to as an “attorney-in-fact.” The term “attorney-in-fact” does not mean the person is a lawyer.

What is a “third party”?

As used in this pamphlet, a “third party” is a person or institution with whom the agent has dealings on behalf of the principal. Examples include a bank, a doctor, the buyer of property that the agent is selling for the principal, a broker, or anyone else with whom the agent must deal on behalf of the principal.

What is a “Limited Power of Attorney”?

A “Limited Power of Attorney” gives the agent authority to conduct a specific act. For example, a person might use a Limited Power of Attorney to sell a home in another state by delegating authority to another person to handle the transaction locally through a “Limited Power of Attorney.” Such a power could be “limited” to selling the home or to other specified acts.

What is a “General Power of Attorney”?

A “General Power of Attorney” typically gives the agent very broad powers to perform any legal act on behalf of the principal. A specific list of the types of activities the agent is authorized to perform must be included in the document.

What is a “Durable Power of Attorney”?

A Power of Attorney terminates if the principal becomes incapacitated, unless it is a special kind of Power of Attorney known as a “Durable Power of Attorney.” A Durable Power of Attorney remains effective even if a person becomes incapacitated. However, there are certain exceptions specified in Florida law when a Durable Power of Attorney may not be used for an incapacitated principal. A Durable Power of Attorney must contain special wording that provides the power survives the incapacity of the principal. Most Powers of Attorney granted today are durable.

Must a person be competent to sign a Power of Attorney?

Yes. The principal must understand what he or she is signing at the time the document is signed. The principal must understand the effect of a Power of Attorney, to whom he or she is giving the Power of Attorney and what property may be affected by the Power of Attorney.

Who may serve as an agent?

Any competent person 18 years of age or older may serve as an agent. Agents should be chosen for reliability and trustworthiness. Certain financial institutions with trust powers may also serve as agents.

What happens if the Power of Attorney was created under the laws of another state?

If the Power of Attorney was properly executed under the other state’s laws, then it may be used in Florida, but its use will be subject to Florida’s Power of Attorney Act and other state laws. The agent may act only as authorized by Florida law and the terms of the Power of Attorney. There are additional requirements for real estate transactions in Florida, and if the Power of Attorney does not comply with those requirements its use may be limited to banking and other non-real estate transactions. The third person may also request an opinion of counsel that the Power of Attorney was properly executed in accordance with the laws of the other state.

(Source: The Florida Bar)

POWERS AND DUTIES OF AGENT

What activities are permitted by an agent?

An agent may perform only those acts specified in the Power of Attorney and any acts reasonably necessary to give effect to the specified acts. If an agent is unsure whether he or she is authorized to do a particular act, the agent should consult the lawyer who prepared the document or other legal counsel.

Two types of acts may be incorporated by a simple reference to the statutes in the Power of Attorney – the “authority to conduct banking transactions as provided in section 709.2208(1), Florida Statutes” and the “authority to conduct investment transactions as provided in section 709.2208(2), Florida Statutes.” When either of these phrases is included in the Power of Attorney, all of the acts authorized by the referenced statute may be performed by the agent even though the specific acts are not listed in the Power of Attorney itself.

May an agent sell the principal’s home?

Yes. If the Power of Attorney has been executed with the formalities of a deed and authorizes the sale of the principal’s homestead, the agent may sell it. If the principal is married, however, the agent must obtain the authorization of the spouse.

What may an agent not do on behalf of a principal?

There are a few actions that an agent is prohibited from doing even if the Power of Attorney states that the action is authorized. An agent, unless also a licensed member of The Florida Bar, may not practice law in Florida. An agent may not sign a document stating that the principal has knowledge of certain facts. For example, if the principal was a witness to a car accident, the agent may not sign an affidavit stating what the principal saw or heard. An agent may not vote in a public election on behalf of the principal. An agent may not create or revoke a will or codicil for the principal. If the principal was under contract to perform a personal service (i.e., to paint a portrait or provide care services), the agent is not authorized to do these things in the place of the principal. Likewise, if someone had appointed the principal to be trustee of a trust or if the court appointed the principal to be a guardian or conservator, the agent may not take over these responsibilities based solely on the authority of a Power of Attorney.

What are the responsibilities of an agent?

While the Power of Attorney gives the agent authority to act on behalf of the principal, an agent is not obligated to serve. An agent may have a moral or other obligation to take on the responsibilities associated with the Power of Attorney, but the Power of Attorney does not create an obligation to assume the duties. However, once an agent takes on a responsibility, he or she has a duty to act prudently. (See Financial Management and the Liability of an Agent.)

Is there a certain code of conduct for agents?

Yes. Agents must meet certain standards of care when performing their duties. An agent is looked upon as a “fiduciary” under the law. A fiduciary relationship is one of trust. If the agent violates this trust, the law may punish the agent both civilly (by ordering the payment of restitution and punishment money) and criminally (probation or jail). The standards of care that apply to agents are discussed under Financial Management and the Liability of an Agent.

(Source: The Florida Bar)

HEALTH CARE AND THE POWER OF ATTORNEY

What is the relationship between a Declaration of Living Will and Power of Attorney?

A Declaration of Living Will specifies a person’s wishes as to the provision or termination of medical procedures when the person is diagnosed with a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will and a health care surrogate designation are termed “health care advance directives” because they are made in advance of incapacity and need. If a person is unable to understand or unable to communicate with a doctor, a living will is a legally enforceable method of making sure the person’s wishes are honored. Even if a person has a living will, a person’s agent may make health care decisions if the Durable Power of Attorney specifically gives this right.

What is a Health Care Surrogate Designation and how does it differ from a Power of Attorney?

A Health Care Surrogate Designation is a document in which the principal designates someone else to make health care decisions if the principal is unable to make those decisions. Unlike a Power of Attorney, a health care surrogate decision-maker has no authority to act until such time as the attending physician has determined the principal lacks the capacity to make informed health care decisions. (In instances where the attending physician has a question as to whether the principal lacks capacity, a second physician must agree with the attending physician’s conclusion that the principal lacks the capacity to make medical decisions before a surrogate decision-maker’s authority is commenced.) Many medical providers prefer a designation of health care surrogate for health care decisions because the document is limited to health care. However, a Durable Power of Attorney specifically for health care may enable the agent to assist the principal in health care decisions even though the principal may not completely lack capacity.

(Source: The Florida Bar)