What is a Power of Attorney?
Understanding a Power of Attorney can be confusing. Powers of Attorney (POA) are documents that grant an individual the authority to make decisions and sign legal documents on behalf of another. The authority granted varies depending on the wording or inclusion of specific powers stated in the drafted document.
Most power of attorney forms permit an agent (the person authorized to make decisions) to act in situations involving the finances, property, trusts, and legal documents for that of the principal (the person delegating authority). The agent is also referred to as the “attorney-in-fact,” which does not mean they are an attorney, but does indicate the assumed fiduciary relationship. The most common uses for power of attorney privilege include selling property, accessing bank accounts, managing finances, and signing legal documents. The document may be revoked at any time by the principal and terminates upon incapacitation or death unless it’s designated to be a Durable Power of Attorney.
Types of Power of Attorneys:
- Durable Power of Attorney
- General Power of Attorney
- Limited Power of Attorney
Durable Power of Attorney: Most power of attorney documents are drafted as durable. This allows the powers vested with the agent to continue even upon incapacitation of the principal. The authorities granted are most useful in the event the principal is unable to act. Therefore, it is vital to ensure duties are performed continuously without interruption by establishing the Power of Attorney as durable. In Florida, more durable power of attorney information can be found in Florida Statute section 709.08.
General Power of Attorney: This specification awards broad authority to carry out legal acts on behalf of an individual. It is not unlimited power in all matters, but rather permits activity in the area of certain subjects. A list must be accompanied by the form to indicate which actions the agent can perform.
Limited Power of Attorney: This designation allows an agent to act on behalf of the principle only for specific circumstances or to complete a particular action. This power can be as narrow as selling a specific house or asset. The agent is entitled to do all things required to sell the residence, but may not sell other properties or tamper with other finances.
What can an agent do?
An agent may perform only the tasks specified in a power of attorney as well as any acts that reasonably fall under the scope of the defined functions. The document is established on the basis of trust. Any violation of trust could result in civil or criminal penalties. If an agent is permitted to sell a principal’s home, then they are allowed to obtain any documents, funds, and provide signatures for any means necessary to sell the home. If the principal is married, then the agent must obtain authorization from the spouse to sell the home. The agent is awarded the authority to represent and act on behalf of the principal but is under no obligation to do so.
Note that an agent may not perform illegal or prohibited actions even if a power of attorney authorizes the action. Such forbidden measures include practicing law in Florida if not a member of the Florida Bar, signing affidavits stating testimony on behalf of the principal, voting in a public election on their behalf, or creating or revoking a codicil or will in the name of the individual.
Why this document should be part of your estate plan:
Your estate plan should include the authorized Power of Attorney form to indicate the agent responsible for maintaining financial and legal representation in the event of incapacitation. It is important to prepare for the unexpected (and the unavoidable), which is the mentality necessary for developing an estate plan to begin with.
Trusts and wills decide what happens to your property after death, but a power of attorney will allow your trusted representative to continue making important life decisions on your behalf if you are unable to do so for yourself. A power of attorney should be included in your estate plan to ensure your property, finances, and likelihood are well-kept if you are temporarily, or for an extended period, unable to maintain them.
In the event of death, the presence of the document will provide the beneficiaries of your estate the opportunity to observe the end-of-life transactions the agent made on your behalf. It is also crucial to have your document on file with an attorney in the event you revoke the form and/or choose a new power of attorney. Sending a notice of revocation to your attorney will ensure you are protected from the wrongful production of the revoked documentation in the event you are incapacitated and unable to contest it yourself. A new attorney can even adequately notify all others of such changes.
How long does a power of attorney last?
A Power of Attorney is effective immediately upon signing and will terminate upon the principal’s death or incapacitation unless designated as a durable power of attorney which would allow it to stay in effect throughout incapacity. Other reasons the document could terminate include the written revocation by the principal, the resignation or death of the agent, the principal’s imprisonment, or specific language that concludes the agreement. If the power of attorney was created under the laws of another state, it is always a good idea to meet with an attorney to determine if the same arrangement is valid in Florida.
How to get a Power of Attorney in Florida:
A Power of Attorney can be drafted by an estate-planning attorney in Florida. There are various drafting guidelines and formalities that the attorney will be familiar with to ease and expedite the process. Some of this information can be found in Florida Statute section 709. An agent may be any competent person who is 18 years of age or older. The principal for whom the document is created must also be competent and fully understand the significance of the contract. The agreement must be signed by the principal and two witnesses in the presence of a notary who will confirm such valid execution. More information can be found on the Florida Bar’s website in their Florida Power of Attorney Pamphlet.
Florida power of attorney form:
The creation of power of attorney and durable power of attorney documents can vary significantly so make sure each document fulfills the necessary requirements for validation under Florida law. It is paramount that the document is drafted specifically for you. Generic templates may not fully encompass the powers you intend to authorize to your agent or may provide more authority than intended or needed. Allowing an attorney to assess your unique situation properly helps them to meet your desired outcome.
Why you should have an attorney draft this document:
Your life and property are too valuable not to consult a skilled legal professional. The correct format needs to be administered for your power of attorney to be valid. You do not want to risk the document being discredited due to an error in formatting. You need assistance in identifying and specifying the appropriate amount of authority to grant.
Do not allow personal finances and investments to be corrupted due to unintentional broad allocations of power. Also, do not let your property and bills be neglected because of a failure to issue the appropriate authorizations. Many variables could distort the outcome you desire. It is best to seek help from an estate-planning attorney.
If you would like more information about getting a power of attorney drafted please contact our law firm by calling us at (407) 636-4066, email us at firstname.lastname@example.org, or fill out our contact form HERE.