Florida Durable Powers of Attorney

What is a Power of Attorney?

A Power of Attorney is a legal document delegating authority from one person to another to act on that person’s behalf. The person giving the authority is called the Principal, while the person given the authority to act is called the Agent. The document contains very specific language as to what acts the agent can do. Some Powers of Attorney are limited to a specific purpose, for example giving the right to another to sign checks and other bank documents, the right to sign contracts, or to make health care decisions. Others have very broad enumerated powers. They are a very powerful tool, useful for periods of disability and for estate planning issues that may arise in later life. These documents should only be drafted by an experienced attorney.

What is a Durable Power of Attorney?

A Durable Power of Attorney is one that remains legally valid even if the Principal who gave the power later becomes incapacitated. There are, however, certain exceptions in Florida law where a Durable Power of Attorney may not be used for an incapacitated Principal.

What are the legal requirements for a Power of Attorney?

The Principal signing a Power of Attorney must have the legal capacity to do so. In essence, this means that he or she must be of legal age, understand the power that is being delegated, know the person to whom that power is being given (that person must be at least 18 years of age), and understand the property that may be affected by the power given to the Agent. The Principal should choose an Agent who is reliable and trustworthy. Financial institutions and not-for-profits may also serve as Agent. A Florida Power of Attorney must be signed in the presence of two witnesses and a notary.

When is the Power of Attorney effective?

The Power of Attorney is effective as soon as it is signed by the Principal. However, Durable Powers of Attorney that were signed prior to the enactment of Florida Statute 709, effective October 1, 2011, that were drafted to take effect upon the Principal’s disability are not effective until the Principal’s incapacity is certified by a physician. These POAs are called “springing” Powers of Attorney. Springing POAs may not be created after September 30, 2011. The new law made a number of other changes, as well.

What other significant changes occurred under the new Power of Attorney law?

Financial institutions now have four business days to honor the Power of Attorney you present to them or give a written reason for the rejection; they cannot require you to sign their own POA form. A successor agent can be named in the Power of Attorney document. Photocopies and electronically transmitted copies are legally valid. The principal must initial or sign next to certain rights given to the agent, commonly known as “Super Powers”. The intent of this new requirement is to be certain that the person signing the power of attorney has read and understands the significance of these rights that he or she is giving to the agent. It is advisable to have an attorney review your POA if it was drafted prior to October 1, 2011.