Estate Planning

Why do I need a power of attorney in Florida?

May 16, 2022
Why do I need a power of attorney in Florida?

Why do I need a power of attorney in Florida?

A power of attorney is a legal document that gives one person authority to act on behalf of someone else. The maker of the document is called the principal and the person receiving the authority to act is called the agent (also called an "attorney-in-fact" in other states). The authority the agent has depends on the language in the power of attorney.  A power of attorney can be important because if you do not have one and you become incapacitated, the Court will have to appoint a guardian to act on your behalf.  You might assume that your spouse or relative will automatically have authority to act on your behalf or act as your guardian. That is incorrect. You will have to go through a guardianship proceeding in Court and the Judge will decide who your guardian will be.  A medical board of three doctors will produce reports and determine if you are incapacitated. Additionally, guardianship has many strict requirements and can be expensive. Therefore, to avoid these problems, it is best to execute a "durable" power of attorney agreement ahead of time to designate who can handle your affairs, which may avoid the need for a guardianship proceeding all together.

“Your spouse or relative does not automatically have the power to act on your behalf.”

What are some uses for a power of attorney?

A power of attorney can give the agent the power to do almost any legal act that the principal can do. They can pay bills, right checks, invest money, open accounts, sell property, and take almost any other necessary legal action depending on what the agreement says. It is important to know that this document does not remove the ability of the principal to do things for themselves; rather, it simply also gives the agent the power to do things also. A power of attorney is an important and powerful legal document and should be drafted by a layer to meet your specific circumstances. Some pre-printed form might not be valid and may not actually do what you are trying to do if it does not have the correct language.

How do you make a power of attorney agreement?

A power of attorney must be in writing and signed by the principal in the presence of two witnesses, signed by two witnesses, and notarized for the power of attorney to be properly executed under Florida law. There are some exceptions for military powers of attorney and for powers of attorney that were validly executed in another state.

Who can be an agent?

Any competent person over age 18 can serve as an agent. The agent has a lot of power so it is important to carefully choose who you want to be your agent. Additionally, some financial institutions can serve as agents.

What are an agent's responsibilities?

An agent is a "fiduciary" under the law, meaning they must act in the best interest of the principal and not for some other purpose, such as enriching themselves. An agent must must abide by certain standards of care when performing their duties, such as by acting as a prudent investor for example. These standards are set forth in the law and violating them may result in civil or criminal liability for the agent.

When is the power of attorney effective?

In Florida, the power of attorney is technically effective as soon as it is signed. Florida no longer allows the power of attorney to take effect at a later date when the principal is incapacitated (called a springing power of attorney). However, the principal can hold the power of attorney document until the agent is needed.  For example, a lawyer can hold the document for the principal and only turn it over to the agent when certain conditions are met. It is important to note that often times institutions will accept cop

How does the agent sign documents when acting as an agent?

This is a popular question. The agent should always sign their own name "as agent for the principal." For example, it should say "Jane Smith as agent for John Smith" if Jane is the agent and John is the principal. This is the clearest way to indicate that the agent is signing in their capacity under the power of attorney.

There is a lot to consider when making a power of attorney agreement. It is a valuable tool in estate planning and elder law to avoid the hassles and expenses of the guardianship process. Please contact us should you require any assistance with a power of attorney agreement

Join our quarterly newsletter for great legal insight.
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
Quarterly email – No spam ever.