Power of Attorney in Florida
Offering Peace of Mind throughout Fort Lauderdale, Palm Beach & Beyond
Florida powers of attorney are formal legal documents with an ancient history. In their simplest form, they were letters signed by a person designating the right of the person named in the letter to act on their behalf. Properly used, Powers of Attorney are efficient and serve a useful purpose. In the wrong hands, Powers of Attorney are invitations to financial catastrophe and can be the basis for Estate Litigation.
Florida recognizes several types of documents as Powers of Attorney. A “Power of Attorney” is a written, legally-binding document where one person, the “principal,” cedes or delegates the right to another person, the “attorney-in-fact,” to act on his or her behalf. How much power is granted by the principal and how many acts the attorney-in-fact can undertake on behalf of the principal depends upon the type of Power of Attorney involved. Every Power of Attorney is powerful and having legal counsel in both the execution as a principal and in the acceptance of power as an “attorney-in-fact” is wise.
For example, “Limited Powers of Attorney” are used as convenient ways to sell boats or cars. “Durable Powers of Attorney” can be very comforting and helpful when family members must handle financial transactions or sign legal documents for a loved one.
Call us at (800) 776-3103 to learn more about your options for Power of Attorney in Florida. Adrian Philip Thomas, P.A. is here to help.
Types of Powers of Attorney
The Durable Power of Attorney
When a Power of Attorney provides that the power given to the attorney in fact should survive the incapacity of the principal, a “Durable Power of Attorney” is created. Most Florida Powers of Attorney are durable.
Under Florida law, a Durable Power of Attorney remains legally valid regardless of the capacity or incapacity of the principal (the one signing over power to another, the “attorney-in-fact”).
To avoid misuse of power by the attorney-in-fact, the Florida legislature has enacted specific limitations on what the attorney-in-fact can do when there is an incapacitated principal and placed certain requirements before a Power of Attorney will be recognized as durable (Florida Statute §709.08):
- The durable power of attorney must be in writing;
- Must be executed with the same formalities required for the conveyance of real property by Florida law; and
- Must contain the words: "This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08, Florida Statutes" or similar words that show the principal's intent that the authority conferred is exercisable notwithstanding the principal's subsequent incapacity.
Additionally, if the durable power of attorney is conditioned upon the principal's lack of capacity to manage property, then the durable power of attorney is exercisable only upon the delivery of certain statutorily specified affidavits to the third party (Florida Statute §709.08).
General Power of Attorney
A General Power of Attorney usually includes a list of the actions the attorney-in-fact is authorized to perform on behalf of the principal, and absent this restriction leaves the attorney-in- fact to his/her own discretion to perform any legal act on behalf of the principal that pertains to this designated list of allowed activities.
Limited Power of Attorney
A Limited Power of Attorney defines a specific task or action that the attorney-in-fact is authorized to conduct on behalf of the principal. For example, a limited power of attorney may authorize the attorney-in-fact to sell the principal’s boat, and absent that limitation, the attorney-in-fact is given all power (incur expenses in the principal’s name, make promises on the principal’s behalf, etc.) to accomplish this task.
All Powers of Attorney cease to be valid immediately upon the death of the principal.
Limitations of a Power of Attorney
While a power of attorney can have broad applications, there are certain limitations to the power an agent possesses. The POA agent cannot change the agreement or break their fiduciary duty, otherwise they can be held liable for fraud and negligence. The agent also cannot transfer the POA to another individual or make decisions for the principal after death.
If you have any questions about a power of attorney, or if you are dealing with power of attorney abuse, contact our legal team at Adrian Philip Thomas, P.A. for help.
Read more about a Florida Power of Attorney on our blogs:
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