Blogs from November, 2012


A Power of Attorney is writing that grants authority to someone to act in the place of the principal, whether or not the term “power of attorney” is actually used in that writing.  It is often used as an estate planning tool to avoid a guardianship proceeding should the person granting the power of attorney become incapacitated. The “agent” or person given the authority to act for a principal under a power of attorney can be designated as an agent, attorney-in-fact- or otherwise, and includes an original agent, co-agent, and successor agent.  Fla. Stat. 709.2102

The agent named in a Power of Attorney may be any natural person who is eighteen years of age or older and of sound mind. In the alternative, a designated agent given a power of attorney may also be a financial institution having trust powers and a place of business in Florida and authorized to conduct trust business in this State. A principal may designate two or more persons to act as co-agents, with each exercising their authority independently unless otherwise stated in the power of attorney. If a power of attorney requires that two or more persons act together as co-agents, NOTWITHSTANDING the requirement that they act together, one or more of the agents may delegate to a co-agent the authority to conduct banking transactions as specified in F.S. 709.2208(1), whether the authority is to conduct banking transactions is specifically enumerated or incorporated by reference to that section in the power of attorney.

Once the agent or attorney-in-fact accepts their appointment as an agent by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance, they may perform all duties given under the power of attorney. The agent’s acceptance of their role is limited to only those aspects of the power of attorney for which the agent’s actions or conduct reasonably demonstrate acceptance. However, the power of attorney can direct the specific manner by which acceptance must be given or shown.

Once an agent, attorney-in-fact, or person given authority to act on behalf of the principal accepts their appointment, they become responsible for acting on behalf of the principal. Their role and purpose, as designated in the power of attorney can be quite extensive or fairly limited. In some situations, the agent acting under a power of attorney has to expend much time, effort, and expense to handle the affairs, business, and finances of the principal. It can become a full-time job.

An agent named in a power of attorney is entitled to reimbursement of expenses reasonably incurred on behalf of the principal unless the power of attorney provides otherwise. A qualified agent is entitled to compensation that is reasonable under the circumstances unless the power of attorney provides otherwise. However, it is only a “qualified agent” that is entitled to compensation for performing their duties under a power of attorney, notwithstanding anything to the contrary contained in the power of attorney. According to F.S. 709.2112, a “qualified agent” entitled to compensation for their services as power of attorney, means an agent who is the spouse of the principal, an heir of the principal, as defined under F.S. 732.103, a financial institution that has trust powers and a place of business in this State, an attorney or certified public accountant who is licensed in Florida, or a natural person who is a resident of Florida and who has never been an agent for more than three principals at the same time.

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