What is a Florida Power of Attorney?
What is a Power of Attorney?
This article is intended for informational purposes only and is not intended to be legal advice.
According to Florida Statute 709.2102, a Power of Attorney is a “writing that grants authority to an Agent to act in the place of the Principal.” The Statute also defines Agent as “a person granted authority to act for a principal under a Power of Attorney, whether denominated an agent, attorney in fact, or otherwise” and “includes an original agent, co-agent, and successor agent.” Agents may also be known as Attorneys-in-Fact. Furthermore, the Statute defines Principal as “an individual who grants authority to an agent in a Power of Attorney.”
In summary, a Power of Attorney is a legal document in which another person is appointed to act on your behalf. The person you appoint is known as an Agent, and you are the Principal of the Power of Attorney. The idea here is that someone else is appointed so that they can make decisions on your behalf if you are unable to, whether the circumstances are catastrophic or you are on an extended vacation, etc. Generally, Powers of Attorneys are only effective during the Principal’s lifetime but terminate if the Principal becomes incapacitated. However, in Florida, the Durable Power of Attorney is effective immediately upon signing it. Further, the Durable Power of Attorney is actually effective in the event of incapacity. This allows the Agent to continue to act on the Principal’s behalf while they are incapacitated.
Powers of Attorney may be limited to a particular action or period of time or may be broader. Powers of Attorney may also be revoked in writing. The Agent’s authority to act is dependent on how the document is written.
You may choose any person over the age of 18 to be your Agent but should choose someone you trust. Financial institutions may be able to act as Agents in certain scenarios. Once appointed, Agents are required by law to act with your best interests in mind and are not able to assign their responsibilities as an Agent to others but may hire accountants or investors to assist them in their duties.
This may sound similar to a Personal Representative or Trustee, but there are important differences. Personal Representatives only represent a person upon their passing, whereas an Agent is only effective during the Principal’s lifetime. On the other hand, Trustees manage assets during the lifetime of the Grantor; however, they only manage assets owned by the Trust, whereas Agents have authority over the Principal’s non-trust assets.
Florida law requires certain Powers be enumerated that must be initialed to give even more authority. These enumerated Powers are known as “Super Powers” in Florida and may grant an Agent the ability to create, amend, modify, revoke, or terminate a Trust; make gifts, create or change beneficiary designations; create or change rights of survivorship; disclaim property and powers of appointment; or waive the Principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan. For these “Super Powers” to be effective, you must sign or initial next to each of these Powers and may choose which of these Powers you would like the Agent to have or not have. Agents acting under “Super Powers” are still required by law to act with the Principal’s best interest in mind.
Every estate plan should be accompanied by this document and it is important that this document be executed correctly, within the formalities of Florida law. It is also important that your Durable Power of Attorney be as comprehensive as possible for the situations that you would like it to cover. Some are very short, only a few pages long. At Feldenkreis Law, the most comprehensive Powers of Attorney drafted are about 15 pages long, for example. Your circumstances and needs will determine how comprehensive the Durable Power of Attorney should be but in most cases, it should be comprehensive, giving the most authority to your Agent as possible.