A power of attorney is a legal document that grants the authority to act on behalf of another person (the principal) to someone else (the agent or attorney-in-fact). In Florida, a power of attorney is used when a principal is temporarily or permanently ill, disabled, or unable to sign legal documents. The power of attorney may be used to handle legal, financial, business, medical, and other matters.
To create a power of attorney in Florida, a person must (1) decide which type of power of attorney to make, (2) choose an agent and the scope of the authority, (3) obtain a power of attorney form or have an attorney draft one, (4) sign the power of attorney in the manner provided by Florida law, and (5) give a copy of the power of attorney to the agent.
The scope of the power of attorney, also called a general power of attorney, can range from very small—a short duration and only the power to do very few things—to all-encompassing.
A broad power of attorney might empower the attorney-in-fact to act legally for the grantor for any aspect of their life, including entering and making contracts, loans, mortgages, deeds, trusts, and so on.
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Types of Power of Attorney
There are several types of power of attorney. The type you should use depends on your family’s circumstances. These include:
- Limited Power of Attorney. This gives your agent authority to act on your behalf for a specific purpose or during a specific time period. The most common use of a limited power of attorney is with real estate transactions.
- General Power of Attorney. This type of power of attorney gives someone broad authority to act on your behalf.
- Durable Power of Attorney. In Florida, a durable power of attorney is one that remains effective even if you become incapacitated. This is the most common type of power of attorney in most estate plans.
- Springing Power of Attorney. Unlike a durable power of attorney, a springing power of attorney becomes effective only when a specific event occurs, such as when you become incapacitated.
Prior versions of Florida’s power of attorney law allowed a springing power of attorney, but recent revisions to Florida law outlawed its use.
Benefits of a Power of Attorney
In Florida, as in other states, there are several benefits to getting a power of attorney:
- Flexibility and Control: With a POA, you can give your agent as much or as little power as you choose. You can grant broad authority or limit the agent’s power to specific tasks or periods.
- Choice of Representative: You get to choose who will manage your affairs. This is particularly important if you become incapacitated and cannot decide independently.
- Avoiding Guardianship Proceedings: If you become incapacitated without a POA, a court might have to appoint a guardian or conservator to make decisions for you. This process can be time-consuming, expensive, and stressful for your loved ones. With a POA, you can avoid this.
- Financial Management: A POA can be used to manage financial and business transactions, such as banking, investments, tax affairs, and property management. This can be essential if you become unable to handle these affairs yourself.
- Healthcare Decisions: In Florida, you can also create a healthcare POA, which appoints an agent to make medical decisions on your behalf if you cannot do so.
- Peace of Mind: Knowing that someone you trust is ready and legally able to manage your affairs if necessary can give you and your loved ones peace of mind.
Remember, a power of attorney ends at your death, at which point the directives of your will (if you have one) take over.
Durable Florida Power of Attorney
Under current Florida law, a Florida power of attorney document is active immediately upon execution and delivery to the attorney in fact. A person should be very comfortable with the attorney-in-fact having this much power given to them during the grantor’s lifetime.
A grantor may revoke a power of attorney during their lifetime if the grantor is mentally competent. The power of attorney remains in effect if a grantor loses the mental capacity to manage their affairs. The durability after the incapacity of a power of attorney is why a Florida power of attorney is called a durable power of attorney.
What Does a Florida Power of Attorney Do?
Florida law limits powers granted to an attorney in fact to protect the grantor against relinquishing unlimited power over their life and finances. Under Florida law, certain powers must be specifically initialed to ensure that the grantor of the power truly did mean to give the attorney-in-fact that power. For example, the grantor must initial any grant of power to amend the grantor’s living trust, file the grantor’s federal tax forms, and make elections under the grantor’s retirement plans.
A third party (such as a bank or other financial institution) must accept a valid power of attorney. But the third party is allowed to first consult legal counsel to determine the validity of the power of attorney.
Medical Power of Attorney
A medical power of attorney in Florida is often called a Designation of Health Care Surrogate or an advanced health care directive in some states.
This document is usually separate from a regular durable power of attorney. It gives someone the ability to make medical decisions on your behalf should you be incapacitated or should you be totally unable to communicate with your physician.
The health care surrogate is also authorized to receive medical information about your health condition and treatment from a health care provider.
FAQs About a Florida Power of Attorney
Can you have more than one power of attorney?
Yes, a person can create more than one power of attorney. A single power of attorney document may designate multiple people, or a person can use multiple documents, each giving a separate set of powers to specific people.
Sometimes a person may create a general power of attorney for one person while then creating a more limited power of attorney for another person.
Should you get a power of attorney?
A power of attorney is a typical component of basic Florida estate planning. However, younger couples or recently married couples may decide to omit the power of attorney from their estate plan. They may decide that they do not want to give their spouse the broad legal authority that a Florida power of attorney confers.
About the Author
Gideon Alper specializes in estate planning for individuals and their families.
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