POWERS OF ATTORNEY AND ADVANCED DIRECTIVESA “power of attorney” can be a significant instrument in protecting the assets of a vulnerable adult from perpetrators. A power of attorney is a written instrument by which a principal gives authority to an attorney-in-fact to act on behalf of the principal.
Durable Powers of AttorneyThe Florida Power of Attorney Act, effective October 1, 2011, applies to all powers of attorney in Florida subject to very few exceptions. A durable power of attorney cannot be delegated to a different party and is effective during the principal’s lifetime unless revoked by the principal. Unless otherwise stated in the durable power of attorney, the powers granted the attorney-in-fact under the durable power of attorney extend to all of the principal’s interest in property, whether it is real property (including homestead real property) or personal property.
Any person who is over 18 years of age and of “sound mind” may act as an attorney-in-fact under a durable power of attorney. A financial institution with trust powers may act as an attorney-in-fact under a durable power of attorney if it has a place of business in the state where the durable power of attorney is executed. Certain charitable organizations may also act as attorney-in-fact under a durable power of attorney. The attorney-in-fact is authorized to perform, without court approval, any act specifically detailed in the durable power of attorney. However, Florida statutes provide for certain acts that the attorney-in-fact may not perform. The powers granted under a durable power of attorney can be abused. You should not prepare a durable power of attorney without careful planning and legal counsel. Any power of attorney executed before October 1, 2011, should be reviewed to determine if it complies with Florida law. Key Provisions of The Florida Power of Attorney Act effective October 1, 2011:
- All durable powers of attorney signed on and after October 1, 2011, will be immediate. As such, your agent will have the power to act as soon as you execute the document. It is not necessary to establish that you are incapacitated for your agent to act.
- Florida residents have routinely named successor agents in their Florida durable power of attorney. The new law officially recognizes that backup agents may be included in the durable power of attorney. If a principal names co-agents, each one can act alone without the consent or knowledge of the other, unless the principal specifies otherwise in the instrument.
- Under the previous version of the law, only an original durable power of attorney could be honored. The new law allows for photocopies and electronic copies of the durable power of attorney to have the same validity as an original.
- The principal must give the agent authority to do certain acts, and such authority must be specifically initialed by the principal.
- “Blanket” powers to agents are no longer permitted.
- Revoking the durable power of attorney requires the principal to record a revocation with the Clerk of the Court in Public Records, send copies of the revocation to all financial institutions, and formally notify the agent of the revocation.
- Durable powers of attorney are not forms – they are legal documents. You must understand your power of attorney and what it does and does not authorize before you sign it. There is no statutory form for the durable power of attorney in the State of Florida, as the legislature recognizes that every individual has different needs.