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Frequently Asked Questions About Durable Power of Attorney in Florida

Powers of attorney come in many forms and vary from state to state. They can be quite powerful, but they are frequently a source of widespread misunderstanding. Some believe durable powers of attorney are meant only for incapacitated individuals, while others underestimate the document as a beneficial alternative to guardianship.

If you are evaluating your legal options and planning for future complications, read the answers to these common questions about durable powers of attorney in Florida to see if this document could be right for you.

What is a durable power of attorney?

A durable power of attorney is a legal document giving one person (the agent, or “attorney-in-fact”) the right to act on behalf of another (the principal, or the maker of the document). The extent of the agent’s powers depends on what the principal decides and conveys in the document. Some powers of attorney are limited to very few circumstances, while others are quite broad. It is “durable” when it remains valid if the principal becomes incapacitated. A power of attorney that is not durable will automatically terminate upon the principal’s incapacitation.

What is a durable power of attorney used for?

A person will establish a durable power of attorney so someone they trust can make crucial decisions (e.g. selling property, accessing bank accounts, establishing trusts, signing contracts, making healthcare decisions, etc.) on their behalf if they become incapacitated. Some create this document because they frequently travel and need someone to make decisions for them while they are away, and they include a durability clause to provide for the event that they become incapacitated. People often create a durable power of attorney if they are elderly or facing a long-term illness.

When does a durable power of attorney go into effect?

Durable powers of attorney go into effect immediately after the principal signs the document. However, the principal may hold onto the document after signing it until the help is actually needed. Often, principals give it to the lawyer who assisted them with the document’s establishment, and the lawyer gives it to the agent at a certain time or under certain conditions.

How should an agent sign the document?

When the agent receives the durable power of attorney, the Florida Bar suggests they sign it in the following manner:

  • (name of agent), as agent for (name of principal)

Without the “as agent for” designation, the agent could be held personally accountable for all terms in the document. This extended signature protects the agent from certain liability issues.

What are the responsibilities of an agent?

Contrary to what many people believe, the agent designated in a durable power of attorney is not legally required to perform the authorized actions. If, however, the agent does assume responsibility, Florida will recognize them as a fiduciary and legally require them to meet certain standards of care.

Is there anything an agent could never do?

Even if the durable power of attorney expresses language allowing certain actions, they may not be valid under state law. For example, an agent cannot legally vote in a public election on the principal’s behalf, create or revoke the principal’s last will and testament, complete work the principal was contracted to do, or take over guardianship or a trustee position that the principal had before the durable power of attorney went into effect.

How many witnesses does a durable power of attorney need?

To properly draft and finalize a power of attorney, the principal needs to sign the document in front of two witnesses and a notary. The principal must be competent when they sign the power of attorney, understanding both the purpose and the terms of the document. It must contain special, explicit language stating that the relationship will continue even after the principal becomes incapacitated.

What is the difference between an agent, a trustee, and a personal representative?

A personal representative (referred to in other states as an executor) manages a person’s estate only after they die, while the agent’s powers end with the principal’s death. A trustee is similar to an agent, in that they both can exercise control during the principal or trustmaker’s lifetime. However, the trustee only has power over the assets explicitly mentioned in the trust, and their power over the assets remains in place after the trustmaker’s death.

What is the difference between a durable power of attorney and a guardianship?

While both designate an agent or guardian to make decisions on behalf of a principal or ward, a guardianship removes many of the ward’s rights. A guardianship is only appointed when a court finds that the person is incapacitated, while a durable power of attorney must be signed by a fully competent principal. Therefore, a durable power of attorney allows the principal a greater level of control over the terms because they are competent when the document is established.

Can I make a durable power of attorney on my own?

Technically, you do not need a lawyer to create a durable power of attorney, but the Florida Bar strongly advises it. Any type of power of attorney is a complex and powerful document, and the help of a qualified legal professional will prevent common mistakes that could significantly impact the principal’s wellbeing.

Who can serve as an agent?

Agents must be fully competent and 18 or older. A principal can also designate a financial institution as their agent if the institution has trust powers.

Do spouses automatically have durable power of attorney?

No. If you want your spouse to have this decision-making power, you will need to set up a durable power of attorney designating them as your agent.

What if the power of attorney was created in another state?

Florida will recognize a power of attorney created in another state if it was properly executed according to the other state’s laws. However, the document will be subject to Florida's Durable Power of Attorney Statutes.

When does a durable power of attorney end?

The decision-making relationship between an agent and a principal established in a durable power of attorney can terminate for many reasons. If either person dies, the document becomes invalid. The principal can also revoke the document at any time, so long as they are still legally competent. Alternatively, the circumstances outlined in the document and providing for the agent’s power may end at a certain time or under certain conditions.

At Rivera Aguilar Law Firm, P.A., our attorney assists individuals and families as they prepare for the future, convey their wishes in complex legal documents, and preserve their lasting legacies. She will work tirelessly to protect your best interests and empower you with the knowledge and support you need. If you are unsure of which type of legal document will accomplish your goals, she will answer any questions you have and use years of training and experience to help you find the most appropriate way forward. Schedule your consultation or call (954) 909-0117 to begin planning for your future today.
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