This guide illustrates the important aspects of Florida's Revised Power of Attorney Act that went into effect October 1, 2011.
What is a Power of Attorney?
A power of Attorney (POA) is a document that gives someone the legal authority to act on your behalf. The powers specified in the document may be general powers such as the power to sell a car, or specific powers such as the power to make a gift of a car.
Who is a Principal?
The person giving the power to act is called the Principal. The powers granted under a Power of Attorney must be used for the benefit of the Principal.
Who is an Agent?
An agent (previously referred to as the attorney-in-fact) is the person to whom the power to act on behalf of the Principal is given. The Revised Florida Power of Attorney Act (effective October 1, 2011) changed the term reffering to such an individual from "attorney-in-fact" to "agent".
What are the different types of Powers of Attorney documents?
A Limited Power of Attorney is exactly as it sounds, a grant of limited authority to an Agent to act on behalf of the Principal. For example, a Principal may give a limited power of attorney to an Agent to sell a car in Florida. A General Power of Attorney is also exactly as it sounds, a grant of general authority to an Agent to act on behalf of the Principal. With a General Power of Attorney, the authority to act on behalf of the Principal is extinguished upon the death, revocation, or incapacity of the Principal. A Durable Power of Attorney, in contrast, is a grant of authority to an Agent to act on behalf of the Principal, despite the subsequent incapacity of the Principal. A Springing Power of Attorney is a grant of authority to an Agent to act on behalf of the Principal that only becomes effective upon the happening of a certain event, such as the incapacity of the Principal. As of October 1, 2011, Springing Powers of Attorney are no longer valid in Florida.
What duties does my Agent have?
While the various authority granted to an Agent to act on behalf of a Principal may be limited or general, certain Duties of the Agent owing to the Principal acting on behalf of the Principal may not be amended or modified. These include (1) the Duty not to act contrary to the Principal's reasonable expectations actually known by the Agent, (2) the Duty to act in good faith, (3) the Duty to attempt to preserve the Principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the Principal's best interest based on relevant factors, (5) the Duty to keep records of all receipts, disbursements, and transactions made on behalf of the principal, and (6) the Duty to create and maintain an accurate inventory each time the agent accesses the Principal's safe-deposit box.
What are the so-called "Super Powers" under the Revised Florida Power of Attorney Act?
The Revised Florida Power of Attorney Act introduced what are called "Super Powers" or specific grants of authority, which include: (1) the power to create an Inter Vivos Trust, (2) the Power to Amend, Modify, Revoke, or Terminate a Trust created by the Principal, the Power to make gifts (certain restrictions apply), (4) the Power to Create or Change Rights of Survivorship, and (5) the Power to Create or Change Beneficiary Designations.
How long do Powers of Attorney last in Florida?
Powers of Attorney may be revoked at any time by the Principal, so long as the Principal has the capacity to do so. Revocation may be immediate. However, it is important to notify interested parties of any such Revocation, including hospitals, banks and financial institutions, government agencies, and any other parties or individuals who may act in reliance upon a previously valid Power of Attorney.
Additional resources provided by the author
The Florida Bar has also published a helpful guide discussing Powers of Attorney and the various rules relating to the them. It can be found in the link below.
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