The Basics of Florida Power of Attorney
In Florida, a durable power of attorney is a legal document that allows an individual, known as the "principal," to authorize another person, known as the "attorney-in-fact," or "agent," to act on their behalf in legal and financial matters. Unlike other forms of power of attorney that become ineffective once the individual is deemed incapacitated, a durable power of attorney remains effective even when the principal becomes incapacitated. This is a significant distinction and one of the key features that make a durable power of attorney such a vital part of estate planning.
The importance of having a durable power of attorney in Florida cannot be overstated. If an individual becomes incapacitated and does not have a durable power of attorney in place at the time they lose their ability to handle financial matters, a court may have to appoint a guardian to manage the person’s financial and legal affairs. A court-appointed guardianship is not only a lengthy and expensive process, but it also requires the invasive step of actually going to court to prove incapacity before a guardian can be appointed . This is why long-term care and estate planning in Florida often includes the recommendation to establish a durable power of attorney.
In Florida, there are also different types of power of attorney documents, including a general power of attorney and a limited power of attorney. A general power of attorney grants your agent very wide-ranging powers – basically allowing them to do anything you could do with your money, property, securities, and personal business. A limited power of attorney is just the opposite – it specifically limits your agent’s powers to a particular purpose, such as drafting tax returns or selling a home while you are out of state. For purposes of the Durable Power of Attorney, these different types can be combined, whereas other types of power of attorney cannot.
It’s crucial to remember though, that in Florida, you need two witnesses to sign the Durable Power of Attorney and you must also have it notarized. We don’t post them online here for download because it needs to be filled out and signed by the right people and in the right order to be valid. We offer a free downloadable Durable Power of Attorney form for you to fill out, print and sign if you would like.
Locating Free Downloadable Forms
While you can purchase a durable power of attorney form from a legal station, office supply store or bookstore, there are numerous reliable sources online that provide Floridians with free printable and customizable durable power of attorney forms. Among them:
• Florida Department of Elder Affairs. This government-run site has forms for each type durable power of attorney.
• Florida Department of Financial Services. A huge library of information on everything from insurance to retirement. The library is searchable and includes downloadable estate planning forms specific to Florida.
• Florida Bar Association. The state bar offers numerous articles about estate planning as well as non-probate forms like durable power of attorney. It’s the most reputable estate planning site available online, so definitely check there first.
• County Clerk Web Site. Simply Google your county’s name and the term "clerk of courts" and you should find the official clerk web site. Then search "durable power of attorney" within the site to find the state-approved durable power of attorney form for your county.
• Clerks of Court Online. If you are unsure of your county’s official web site, you can access them all from this master site.
How to Fill Out the Power of Attorney Form
The following sections within the Florida Durable Power of Attorney form require special attention when completing; make sure to read them carefully before drafting your document.
Article 3: This Article specifies the exact powers you are granting to your agent. Usually you would strike through the powers that you do not want to grant so that only the desired powers remain. You are not required to initial each individually stricken section. Important to know is that any stricken section is wholly omitted. There is no reason to write in anything terms of limitations to the stricken powers.
Article 4: In this section you can indicate the manner in which your Agent may commute with the Principal’s financial institutions. Again, any stricken section is not applicable.
Article 5: Here, you are listing all the accounts and how the Agent will be able to access the accounts.
Article 6: You can indicate how this Durable Power may be revoked.
Article 7: The principal(s) should sign their name(s) and print their name(s) below. Include today’s date and their initials next to the date.
Back Page: Be sure that a Notary Public is available at the time of execution.
Legal Issues and Requirements
Unlike some states that allow for oral or implied powers of attorney, a person wishing to give a power of attorney in Florida must execute a written power of attorney. There is no waiting period and you may download a Florida Durable Power of Attorney form online and execute it at any time – even in cases where there a time limitation for an event, such as your ability to proceed with a real estate sale contract, the real estate contract will be enforceable. If a third-party involved in the transaction you are involved with informs you that they can no longer proceed because you have not executed the power of attorney, you should inform the third-party that Florida law does not require a waiting period.
Florida is relatively strict about the contents of a power of attorney. The document must contain a clear grant of authority to allow the agent to engage in the set of actions to be executed. The grant of authority should not be vague or use non-legal terms to explain the powers.
For an agent to be allowed to make healthcare decisions for the principal, the power of attorney must contain the Department of Health Approved Advance Directive Language that allows a principal to delegate authority to an agent regarding the provision, withdrawal, withholding of life-prolonging procedures.
While limited powers of attorney may be effective upon execution of the document, long-term powers of attorney must include a statement specifying when the agent’s authority becomes effective . In most instances, the authority of the agent begins on the date of the execution. However, if the principal wishes for the authority to take effect only following an event (such as the incapacity of the principal), this must be clearly stated within the document. The document becomes effective immediately unless such authority is delayed until a later date or if an event specified within the document occurs.
All powers of attorney must be signed by the principal to be valid in Florida. Because signing the document is considered the execution of the power of attorney, witnesses and notarization are required. This requirement might not seem logical when a property transaction is taking place – after all when you purchase property you usually must have the documents notarized! The reason for the requirement is that the power of attorney will grant the agent the ability to conduct business on behalf of the principal. If the document is not properly executed, creditors may not accept the document due to a lack of authentication, and the agent may not be able to conduct business on behalf of the principal. To avoid this problem, the document must be executed following the rules in Section 709.2201(3), Fla. Stat. The documents must include the date, the name of the principal, the signature of the principal and the printed name of two witnesses. The document can be notarized or witnessed, but it is much easier to have the document notarized so that it can be recorded.
How to Properly Use Your Power of Attorney
When you have successfully executed your Durable Power of Attorney form in Florida, the next step is to ensure that it is used effectively. This means that the appointed agent should use the POA only when necessary and within the powers and limits of the document. If the attorney-in-fact (second party) does not follow these requirements, then the POA could be challenged in court.
The Power of Attorney can be used for a wide range of different situations. In the health care area, it can be used to make medical decisions regarding the principal’s treatment and care if he or she is unable to make decisions for themselves. It may also be used in order to handle routine and non-routine financial transactions such as real estate sales, transferring property, cashing checks and dealing with social security, taxes and other governmental benefits programs.
Under Florida law, the agent is required to act in the principal’s best interest at all times. The agent cannot use the POA to benefit themselves or others. Therefore, the principal has a right to hold the agent accountable for any wrongful actions taken while making decisions on their behalf.
Modifying or Cancelling a Power of Attorney
There are many reasons why you may need to update or revoke a durable power of attorney form – a divorce, death, relocation out of state, a change in desired agent, the incapacity of an agent, or a decision that the form is too old or complicated. Whatever the reason, it is possible to "undo" the delegation of authority and give more up-to-date instructions recognizing who should be able to represent you.
There are legal ramifications to revoking or updating a durable power of attorney in Florida. The law is largely found in Chapter 709 of the Florida Statutes, "Delegation of Power by Parent or Guardian." This chapter governs both durable and nondurable POAs. Section 709.2109 explains the effect of revocation.
(d) A grant of authority in an agency appointment, including a power of attorney, terminates upon:
- The specific date of termination contained in the document unless the document provides for a later date based on a particular condition that is later satisfied.
- The death, minor status, or adjudicated incapacity of the principal.
- Revocation by the principal.
In all of the above circumstances, an agent who is terminated by operation of law may continue in the exercise of the authority granted to him or her for up to 60 days after learning of the termination of his or her actual authority , or the agent may be relieved of all authority by executing a written instrument stating that the agent has no further authority to act for the principal.
Section 709.2111 provides a procedure to follow if you want to change your named agent. Note that the form is much simpler than the initial power of attorney form. It does not require witnesses or notarization. What it does require is that the person to which power is shifting "accept" the appointment.
- 2111 Durable power of attorney with designation of successor agent.—
- (1) A durable power of attorney may designate a successor agent. Successive agents may not name another agent.
- (2) To be effective, the successor agent shall execute an acceptance and post the acceptance with the prior durable power of attorney so as to provide notice of the succession.
- (3) The successor agent shall serve in all respects as the original agent if the original agent dies, resigns, is removed by a court, becomes legally incapacitated, or is otherwise unable to discharge the agent’s duties, or if a designated time for the original agent to terminate the relationship occurs.
- (4) A successor agent may respond to a power of attorney and accept the designation as agent under the durable power of attorney without other affirmative action, if the successor agent has notice of the durable power of attorney and that the successor agent is named under the durable power of attorney; however, such a response is not required until the successor agent has notice of termination of the original agent’s authority.
- (5) The authority of a successor agent is governed by part IV of this chapter. A successor agent under this section who acts in good faith is not personally liable for any loss to the principal or to others that results from the decision or action of the predecessor agent.